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Sep04

Employee Suspension in California

Can an employee be suspended or possibly terminated if he left early from work for a family emergency? This employee has called out sick or left early a few times over the past month as well.

California, like most states, is an employment at-will state. Meaning, either an employer or employee may terminate the employment relationship at any time, without cause.

However, an employer cannot terminate an employee based on personal characteristics as defined under both federal and state laws. Under these laws, it is illegal for an employer to discriminate against an employee based on sex (including pregnancy and childbirth), sexual orientation or identity, genetic information, disability, age (over 40), national origin, race, color, religion, or citizenship status. Furthermore, employees cannot be terminated for participating in union activity or for refusing to participate in any illegal activity.

If a collective bargaining agreement, employment contract or company policy states that an employee may only be terminated for cause or under certain situations, the employer must abide by the terms of the agreement.

Adopting a policy of progressive discipline reduces the risk of a wrongful termination claim. Progressive discipline provides a graduated range of responses to employee misconduct. Offenders may receive a verbal warning at first, then a written warning for subsequent violations, then suspension, and ultimately termination.

Has the employee’s callouts or early departures violated company policy or is his performance substandard because of his excessive absences from work? If so, have these issues been addressed with him?

More importantly, do you know why the employee has been absent so frequently? Though most employers would rather not pry into an employee’s personal life, it’s important to determine if the employee’s absences are protected under state or federal leave laws.

The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide qualified employees of covered employers up to 12 workweeks of unpaid, job protected leave for specified family and medical reasons. Covered employers under both the FMLA and CFRA include those who employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year. Feel free to post another question for more details on either of these laws, if applicable. If the employee is covered under either act, then he cannot be disciplined in any manner for protected absences.

The federal Americans with Disabilities Act (ADA) is also worth mentioning. The ADA applies to employers with 15 or more employees and requires employers to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense. Again, feel free to post another question for details on the ADA if you think the law applies to this situation.

If the employee is not covered under any of the aforementioned laws or you’re confident his absences don’t qualify him for protection, then disciplinary action for missing work is legally permissible. However, it still may not be the best option.

Let’s assume the employee truly had an illness that required him to miss work and truly had a family emergency requiring him to leave early. Consider the impression your giving to other employees and even to the employee in question. You’re basically telling them that they’re not allowed to get sick and they’re not allowed to tend to their families in urgent situations. Any disciplinary actions, especially termination, against the employee may create a resentful workforce and a disgruntled ex-employee. Neither of which will benefit you.

Thus, consider discussing your concerns with the employee. Focus on the effect his absences have on his work and on the workload of other team members who have to take on his duties while he’s out. If he is an otherwise great employee, remind him of such. If not, take this time to point out specific issues with his performance and the actions he must take to rectify them. Then, if the employee continues his poor performance, suspension or even termination may be warranted. HTH!

This entry was posted on Friday, September 4th, 2015 at 6:51 pm and is filed under
Attendance Management, Labor Laws, Termination.
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