Human Resource Blog

First of all, many HR pros would say that terminating an employee for poor performance was terminating them for cause. While the procedure that you mention is a little stricter than most, nothing about it suggests that it is out of bounds. Many employers have the policy of escorting terminated employees off the property. It prevents them from spreading lies or rumors, or otherwise damaging employee morale, on the way out. Most companies permit employees to pack up their own belongings, but in this case there seems to be some concern that the employees would be taking company property. You seem to feel that the employees who are treated this way are unduly embarassed — it is hard for us to tell if this is the case or not. Surely the coworkers are going to notice that John has been fired, anyway? So what difference does it make if he is escorted off the property.

You say that the employee does not know what is hitting them, but surely they are aware of the performance issues? And, just being sent to that conference room on a Friday would be a clue, right?

This procedure would be a best practice in HR if there was any risk of violence in the workplace — for example, if there were a number of layoffs or terminations due to a merger. It is probably a wise precaution for the employer to take, and certainly within the bounds of good HR practice.

Yes, in some cases an employee can be discharged for severe violations of company policy while on short term disability. Suppose while John is on disability, his supervisor finds a gun in John\’s desk. John admits bringing the gun to work, in violation of company policy. It would be entirely reasonable for the employer to terminate John, even though he is on short term disability. Or, suppose John is an accountant on short term disability. While he is gone, an audit reveals that John has been embezzeling money from the company. Again, John can be discharged.

To put it another way, an employee who commits misconduct and then goes on short term disability doesn\’t get a free pass on the misconduct.

In some cases an employer can\’t terminate a worker BECAUSE they are on short term disability, especially if they are covered by FMLA or ADA. If the company has known of the employees misconduct for quite some time, and chooses not to discipline the employee until he or she is on short term disability, that may present the appearance of discrimination based on medical condition, which could be illegal under ADA.

An employee on short term disability can be subject to any disciplinary or employment action that would have taken place, had the employee not been on short term disability. This answer applies to almost all employment at will states, and in a more limited fashion, to many others.

We feel your pain. The California rules regarding immediate payment of final wages, including earned vacation, to terminated employees are difficult for many employers to meet. But, the California Department of Industrial Relations expects every employer doing business in the state to have an alternate plan in place, to be sure that the employer complies with the law. Unfortunately, just saying “we cannot do this” is not a justification, in their eyes.

Employees who quit with less than 72 hours notice must receive their final paycheck within 72 hours. Those who give more than 72 hours notice must receive their final paycheck on their last day. Employees who are fired must be paid immediately, meaning right then and there, on the spot. The arrangement you are suggesting is almost certainly a violation of California regulations.

By the way, the California regulations also effectively cancel the employees direct deposit when an employee quits or is fired. Unless the employee requests otherwise in writing, the employee must be given his or her final pay as cash or an actual paycheck, not by direct deposit. This is to prevent exactly the problem you are encountering. Even if the employee does authorize direct deposit, the immediate deadline must be met.

Employers who fail to meet the deadline can be assessed a waiting time penalty. The penalty per day is equal to the employees wages for one day, up to 30 days total. So if your employee does not have access to her money until Wednesday, it is possible that the Labor Commissioner will rule that you must pay her for Monday, Tuesday and Wednesday as a penalty.

Some companies handle this problem by allowing local managers to pay workers in petty cash, or to write payroll checks at termination. In other cases, an employer who knows on Friday that an employee will be terminated at the end of the shift on Monday, would FedEx the employee’s final paycheck – including Monday’s wages — to the supervisor on Friday. The check would arrive on Monday, and the employee could be terminated at the end of the shift Monday.

Another option would be for the employee to be suspended with pay for three days on Monday, while the company draws up a paycheck. Again, the check can be sent by FedEx or overnight delivery to the supervisor. The employee could be terminated on Wednesday afternoon, once the final paycheck is in hand.

Of course, you can also cross your fingers and hope that the California Department of Industrial Relations sees it your way.

Read more about this at: http://www.dir.ca.gov/dlse/FAQ_Paydays.htm

This is a touchy issue, because California places more restrictions on the employment at will doctrine than any other state. Generally, California employers who terminate a worker for a performance issue must show that they made every effort to rectify the problem, including repeated warnings and retraining. In some cases, that still may not be enough. For that reason, if you genuinely intend not to replace this person, it might be wiser to lay him or her off. The safest course would be to consult with an attorney before taking any action.

The best practice in the HR field would be to return the employee to her original job. In fact, that is technically what reinstatement means — the employee is returned to the same job with the same seniority and beneifts, as if she had never left. The employer could certainly offer a different position, but the employee is under no obligation to take it. It appears that this employee may have a case for wrongful termination, if she is not returned to her original position. However, she would likely have to hire an attorney to press that claim.