Download any one of these free White Papers, instantly!
Faced with a firing, managers are typically upset and uncomfortable. They want to just "get it over with." Stop right there. Slow them down, and ask these 10 questions first. Otherwise, you're likely headed for an expensive lawsuit.
Here are the 10 questions we recommend you ask before any termination. If your answer to any of these questions rings a worrisome note, review the situation carefully before making a termination decision.
1. Have you followed your own policies?
Most organizations have a discipline policy that covers termination. Check your policy to be sure that you have followed it, especially if your policy calls for “progressive discipline” or suggests that employees are fired only for cause.
Policies generally reserve the right to skip steps in the progressive discipline system and fire immediately for certain offenses such as stealing or violence. However, you should exercise this right with caution.
2. Is there a contract or other guarantee?
If the employee in question has a written employment contract, you will probably be bound by its terms. Even in the absence of written contracts, many courts have found that certain documents, such as employee handbooks or offer letters, can create implied employment contracts. For example, your policy or handbook might inadvertently:
Learn how to avoid common termination-related minefields in California—webinar next week!
3. Is there a union agreement?
If the employee in question is covered by a union contract, you must determine whether this termination would be contrary to the contract provisions.
Furthermore, if the employee has been involved in union organizing, you must weigh whether the offense for which the employee is to be terminated could be considered “concerted activity” or whether the termination could be considered retaliation for union activity.
4. Have you been consistent?
Consistency is an important part of fair treatment. If you have consistently terminated others for the same offense for which you want to terminate this employee, you are probably going to be all right. If, however, you have never terminated a white male for a certain offense, and now you intend to terminate a black male for that offense, you could be on thin ice.
5. Could this firing be viewed as discriminatory?
Could the employee claim that he or she was fired not for the reason the organization claims, but because of discrimination? (“You fired me because I am [old, black, Muslim, gay, disabled, etc.], not because I broke a rule.”)
Are your terminations exposing you to (preventable) legal liability? Find out at our webinar next Tuesday, specifically for California employers. Learn more.
6. Could this firing be viewed as retaliatory?
Could the employee claim that he or she was fired for performing a protected activity? For example, making a complaint to a government agency, making accusations of sexual harassment, or making a workers’ compensation claim? If so, look at the situation carefully.
7. Is the employee pregnant?
In general, treat pregnant women the same way you treat any employee with a disability. You may not fire a woman because she is pregnant.
In the next issue of CED, we’ll cover questions 8 through 10.
Download your free copy of Training Your New Supervisors: 11 Practical Lessons today!
Final pay laws are strict in some states, and the penalties add up very quickly for employers who do not pay in time. With the clock ticking to deliver that final paycheck, it's crucial for employers to understand their obligations so they can stay in compliance. The best way to avoid costly errors is to have a plan in place for employee resignations and terminations long before an employment relationship ends.
"Voluntary resignation and involuntary termination are treated differently when it comes to final pay issues." Nicole A. Legrottaglie explained in a recent BLR webinar. "The general rule for California employers is that: a California employer who discharges an employee must immediately pay the employee all wages he has earned."
On the other hand, if an employee who does not have a written agreement for a definite period of employment quits without giving prior notice, his employer must pay his wages within 72 hours. If an employee gives at least 72 hours notice of his intention to quit, his wages must be paid at the time of quitting.
"An employer who willfully fails to pay any wages of a terminated employee, without abatement or reduction, within the time specified may be assessed waiting time penalties in accordance with California Labor Code section 203." Legrottaglie advised. If the penalties are assessed, the employer will owe an amount in addition to the unpaid wages equal to the employee's daily wages (at the rate in effect when payment was due) for each day the wages remain unpaid until an action is commenced for the wages. The penalties will not exceed 30 days' pay.
The Division of Labor Standards and Enforcement (DLSE) is the California regulatory agency established to enforce labor code statutes and handle wage claims. The DLSE regulations state that a violation will be considered "willful" (and thus be subject to the penalty just outlined) if an employer intentionally fails to pay wages to an employee when those wages are due. On the other hand, the employer has the ability to dispute this with a good faith dispute. The regulations state that a good faith dispute that any wages were due could prevent a finding that a failure to pay was willful (and thus could preclude the imposition of waiting time penalties under Section 203). However, this dispute may or may not be successful with the judge.
For more information on sending an employee's final pay on time without penalties, order the webinar recording of "Final Pay: Understanding Your Rights and Obligations When the Employment Relationship Ends." To register for a future webinar, visit CER webinars..
Nicole A. Legrottaglie is an attorney in the Sacramento office of Carothers DiSante & Freudenberger LLP. She defends her clients in a broad range of employment claims, including claims of discrimination, retaliation, harassment, wrongful termination, ADA/FMLA compliance, wage and hour, contract disputes, and unfair business practices.
Yesterday’s CED featured legal tips about probationary periods. Today, Hunter "Please Sue Me" Lott says, "Get rid of your probationary period." Otherwise you risk negating your employees' at-will status.
Lott says that any "probationary period" or "introductory period" (or as one company calls it, "comfort time") is a threat to the employer's at-will status because it suggests that after the probationary period, employees have greater rights.
That's not the only problem, though, Lott says. For example, the typical situation he sees is that the manager comes to HR on day 89 of the 90-day probation period and says "I need to fire the person."
Unfortunately, says Lott, what you find, invariably, is that (a) there's no documentation, and (b) it's actually day 92. Whoops.
What you really want, he says, is to eliminate the probationary period entirely. Then, he says, "Your employees are on probation forever."
Here’s a more positive view of probationary periods:
The probationary period for a new employee (generally from 30 to 180 days) can be a most useful time; it can provide critical interaction between employer and employee:
Hiring, firing, wage/hour, and more. Don’t miss the 2013 California Employment Law Update conference. Learn more.
Initial appointments for a probationary period should be clearly conveyed in writing to the applicant prior to employment so the status of the employee during the probationary period is never doubtful.
How to Use the Probationary Period Effectively
It is during the probationary period that new employees decide what the job is about, how they will do it, and the mores and culture of the new organization. This is the time for the employer to not only assess performance, but to help improve it, as well as to coach the worker as to what the expected standards are and how (and how not) to reach them in this company.
Performance reviews of newly hired employees give supervisors the opportunity to evaluate new employees' work habits and make a reasoned decision about their future with the company.
An employer can and should deal with a poor performer who is new just as with any other at-will employee, which means evaluating the worker periodically (in a truncated fashion and at short intervals), documenting both good performance and problems. Supervisors should document every evaluation and every action, just as they would for a regular employee.
Tip: Employment beyond the probationary period should be contingent upon the satisfactory evaluation of the employee's performance, and this idea should be clearly conveyed to the probationary employee with the caveat that failing to perform at a satisfactory level could mean either extension of the probationary period or termination.
Probationary periods—a concern, but hardly the only one you'll have to worry about these days. Hiring, firing, wage/hour … it just never stops for the California HR professional.
Fortunately, we have a solution.
Don’t Miss the 8th Annual California Employment Law Update Conference—Now Being Offered in Two Convenient Locations!
San Francisco: Oct. 9-11
Anaheim: Oct. 23-25
Our intensive program delivers rock-solid, bottom-line value with practical guidance for overcoming the latest HR challenges in California.
Join us this fall, and learn the latest on …
The state Fair Employment and Housing Commission was abolished as of January 1, but this doesn’t mean your legal compliance obligations have gotten any easier. Far from it, in fact: The new seven-member Fair Employment and Housing Council is zealously committed to enforcing employee rights, and the Department of Fair Employment and Housing (DFEH) is now authorized to prosecute cases directly in court and collect both attorneys’ fees and costs.
Even the best-intentioned employers can make devastating missteps when it comes to compliance with the full array of antibias laws—particularly in California, where you have the employee-friendly protections of state law to worry about. Now’s the time to get prepared.
Following the 2012 election, both Obama and “Obamacare” are here to stay—and the countdown to the 2014 individual mandate is on. That’s why you need to get your house in order now, in 2013. If you have 50 or more full-time-equivalent employees, that includes deciding if you’ll “play or pay” pursuant to what’s considered perhaps the most contentious of all the Affordable Care Act (ACA) provisions.
You won’t want to miss our up-to-the-minute healthcare update. We’ll cover the following and much more:
COMPENSATION AND BENEFITS
A well-organized pay program is more important now than ever before, in the wake of the Great Recession. Merit budgets are smaller, compensation programs are challenged, and you simply need to do more with less. We’re also seeing philosophical changes occurring at the highest levels of government with respect to the idea of “pay for performance,” such as demands for aggressive approaches to reducing the wage gap between men and women.
To keep up with other employers, as well as to attract and retain top talent, it's a must for you to be up to date on the latest trends so you can remain competitive. We’ll explain:
EMPLOYMENT LAW HOT TOPICS
We’ll give you the real skinny on the latest HR-related developments that are keeping you up at night: wage and hour conundrums … “BYOD” (Bring Your Own Device) dilemmas … drugs in the workplace … guns in the workplace … and so much more:
Don’t miss your chance—sign up for CELU by June 30, and save $100 on your registration. Get the full details here—we hope to see you this fall.
Download your free copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!
Making deductions from the final paycheck can open an employer up to legal problems—including accusations of withholding final pay if the deduction was improper. If an employer is deemed to have withheld final pay, it could be subject to waiting time penalties.
In a recent CER webinar, Joel M. Van Parys and Nicole A. Legrottaglie addressed this issue in detail. They explained the employer obligations to give the employee their final paycheck
Q. If an employee resigns and there are still outstanding expense reimbursements to process, it may be impossible to get the final pay done within the required 72-hour turnaround. What should we do?
A. If there are reimbursements that are owed to the person when the person resigns that prevent 72 hours from being enough time to get those done, I would still advise employers to find a way to get them done in that time if it is at all possible. If it is truly not possible to get them done in 72 hours, there may be some type of liability, depending on what type of payment it is.
If the employee has not yet submitted their receipts for reimbursement, be sure you request those receipts and pay them as soon as they are received. If there is a problem with the way the request has been made or if there is missing information, contact the employee about the discrepancy. Be sure to document why you're unable to get it done within the time frame.
Q. We understand the final payment rule, but what if the employer uses an external payroll processor? The normal turnaround time is 24 to 48 hours. What should the employer do in this case to issue the final pay in time?
A. This is a challenge because many companies use third-party payroll services. Sometimes it can still be planned based on when you're going to end the employment relationship. The employer may end up with a slight overpayment in these cases. The other way to handle this is to "pre-pay the penalty." For example, if the employer knows the final pay will be paid late, they simply plan on it and pay the extra amount (the penalty) with the final paycheck instead of later.
Q. Is the 72-hour payment period related specifically to California law? Or is this at the federal level?
A. It is specific to California law.
Q. Can final pay be paid via direct deposit, or must it be paid as a check?
A. Final pay can be direct deposited as long as it complies with the time requirements. It can be difficult administratively to get the direct deposit to occur within the required timeframe, but it is acceptable if you can do it.
Q. If we pay a discretionary bonus for the previous calendar year after the fiscal year ends on March 31st, and an employee was terminated at the end of the calendar year, do we have to pay them their discretionary bonus?
A. Probably not, but it depends on the rules required to meet the discretionary bonus requirements.
For more information on processing the final paycheck on time, order the webinar recording of "Final Pay: Understanding Your Rights and Obligations When the Employment Relationship Ends." To register for a future webinar, visit CER webinars.
Joel M. Van Parys is an attorney in the Sacramento office of Carothers DiSante & Freudenberger LLP. He represents management in all aspects of the employer-employee relationship, including defense of wage and hour claims, employee misclassifications, wrongful termination, discrimination and harassment, retaliation and unfair competition claims.
Many employers start employees off with a "probationary period" during which the employer can let the new employee go without worrying about just cause and lawsuits. Sounds good—but there's a downside, says California attorney Sandra Rappaport.
The use of "probationary hiring" has been confusing for employers and employees alike, Rappaport says. Originally, it was a way for an employer subject to a collective bargaining agreement (CBA) to carve out a short, introductory period that would not be governed by the same termination requirements as the regular employment period under the agreement.
Generally, that meant that during the probationary period, a union employee could be let go without concern for just cause or other rules governing termination.
Probationary periods have since been adopted by many employers who aren't unionized, says Rappaport, who is a partner at the San Francisco office of the law firm Hanson Bridgett LLP.
Must You Have a Probationary Period?
No particular law requires employers to have a category of probationary employees or governs termination during a probationary period, says Rappaport. Essentially, the answer to how one should treat a probationary hire depends on the nature of the particular employment relationship.
If an employment contract sets forth the requirements for termination—for example, employment can only be terminated for cause—the employer obviously must comply with those requirements.
Similarly, if the employment relationship is governed by a CBA negotiated between the employer and a union representing its employees, the CBA likely will specify the grounds for termination and the required procedures for discharge. In both an employment agreement and a CBA, the contract's language governs the requirements for lawful termination during a probationary period.
If there is no employment contract saying otherwise, the presumption in many states is that all employment is at will, which means that either party can terminate it with or without cause.
If an employer has an at-will employment relationship with all of its employees, a probationary period is really not needed. A new hire can be terminated at any time in his or her employment without cause; setting aside a special introductory period does not change that.
However, says Rappaport, most employers understand that the at-will presumption does not necessarily mean that they will be immune from a wrongful termination suit. Even in an at-will state, an employer cannot terminate a person for any reason barred by state or federal law. Employment decisions based on prohibited grounds like race, gender, disability, or for reporting illegal conduct ("whistleblowing") can subject the employer to liability, even if the discharge is during a probationary period.
Therefore, it is helpful to document the legitimate bases for a termination decision, regardless of when it occurs.
CELU 2013—sign up now and save $100! Learn how.
Don't Create an Implied Agreement
In addition, says Rappaport, at-will employers need to avoid creating implied agreements—through actions, policies, verbal commitments, and the like—that an employee will not be terminated except for cause.
To avoid wrongful termination lawsuits based on a claim that an implied agreement exists, employers must be careful not to behave in ways inconsistent with at-will employment. Using a probationary period may imply some increased level of job security after the period ends—an implication that is completely inconsistent with at-will employment.
To combat this possibility, an employer should clearly state in the employee handbook or in an employee's offer letter its intention to retain the at-will nature of employment even after the probationary period expires. Additionally, employers should:
Employers that wish to maintain at-will employment relationships with their employees should evaluate whether there is a real benefit in using a probationary period, says Rappaport. Those that want to continue using probationary periods should take care to clearly articulate their reasons and implement their pertinent employment policies in such a way as to avoid opening themselves up to liability.
In tomorrow's CED, Hunter "Please Sue Me" Lott advises, "Probationary periods? Get rid of them!"
The employment laws in California are some of the strictest in the nation.
It's no secret that we live in the most litigious society in history. And that companies like yours are a favorite target for the media, attorneys, courts, disgruntled employees, and even job candidates.
California workers are particularly prone to complain about the company that employs them.
California Employer Advisor, our award-winning HR advisory newsletter, will introduce you to all aspects of the continually changing state and federal laws governing your relationship with your employees.
Not only do we report on the important laws, management practices, and cases that impact your business, we also outline pragmatic, actionable ideas to help ensure full compliance, avoid lawsuits, and protect your company from financial losses