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What to Do and Not to Do When Firing an Employee in California

Posted on in Employment

wrongful termination, San Jose employment law attorneys, firing an employee, local employment lawyer, wrongful termination lawsuitFiring an employee is never a pleasant thing to do. Nonetheless, it is sometimes a necessary part of conducting business. When letting an employee go in California, there are a number of important legal considerations that employers should take into account in order to help deter the employee from turning around and filing a wrongful termination lawsuit in the future. While a local employment lawyer can answer any case specific legal questions that you might have, some helpful dos and don’ts for California employers faced with the prospect of firing an employee are listed below.

What You Should Do

When firing an employee be sure to:

  1. Warn the Employee Before You Fire Him or Her: It is good practice to warn an employee before you fire him or her, unless the employee commits an egregious act that justifies immediate termination. Most employees are let go for poor job performance. Therefore, when you notice an employee slipping, be sure to provide the employee with feedback about his or her work, suggestions for improvement, and clearly explain what you expect of him or her. You may even want to consider utilizing a performance improvement plan. Be sure to fully document each step of this process.

  1. Fire the Employee Face-to-Face: No matter how uncomfortable firing an employee makes you feel, it is very important to always fire employees face-to-face. Firing someone via email, over the phone, or in a letter is unprofessional and greatly increases the chances that the employee will feel that his or her termination was improper.

  1. Always Have a Witness Present: Make sure to have a witness present when you fire someone. Generally, this witness is someone from human resources, but he or she can be from another department as well. If the employee ends up suing for wrongful termination, then it will be very important to have a witness who can testify as to what was discussed when the employee was let go.

What You Should Not Do

When firing an employee be sure that you:

  1. Do Not Fire the Employee for a Prohibited Reason: Here in California, many employees are employed on an “at-will” basis. This means that the employee has the right to quit his or her job at any time for any reason and that, conversely, the employer can fire the employee at any time for any reason, with a few important exceptions. The three key exceptions to the at-will employment doctrine are: discrimination against a protected class, going against public policy, and violation of a just cause promise. In other words, a California employer cannot fire an employee (1) because of their religion, sex, race, religion, etc., (2) for a reason that violates public policy (for example, you can not fire someone for whistleblowing), or (3) if the employee was promised that they would only be fired for cause.

  1. Do Not Get Emotional: When firing an employee it is important to rationally and calmly explain why the employee is being fired. Do not get emotional. Let the employee explain his or her side of the story and vent a bit if they wish to do so before informing him or her that your decision is final. Let the employee leave with their dignity.

Consult With a Local Employment Lawyer

Even if you follow the tips provided above, a disgruntled former employee may still file a wrongful termination lawsuit against you. If this happens, contact the experienced San Jose employment law attorneys of Jachimowicz Law Group to discuss your legal options.

Source:

https://www.calchamber.com/california-employment-law/pages/california-employment-law.aspx

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