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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33779
Experience:  Retired (mostly)
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Dear Socrateaser, You have helped regarding this issue

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Dear Socrateaser,

You have helped regarding this issue before, and with others; thanks.

My company has an employee who has cancer (we are in CA). My company has more than 10 employees. My company has tried to work with the employee to find creative ways for them to work from home, etc; and it has not worked. The employee has now left work and will not return emails and phone calls. Last day worked 6/22/11- she worked from home and was told she would have to come in or take a leave of absence. Employee never returned communication. Temp hired 6/23/11. Employee paid through 7/1/11. Employee not officially fired but is no longer being paid. Employee was a salaried employee. Possibly operating pursuant to a contract but the contract was never signed.

Relevant Employee Work History

1. Day off 1/14- took niece to hospital
2. ½ day off 1/26- blood tests
3. Sick on 2/18/11, worked from home
4. Sick on 2/23/11, worked from home;
5. Sick on 2/24/11, worked from home ;
6. Sick on 4/22/11, worked from home;
7. Sick on 4/31/11, worked from home;
8. Sick on 5/2/11, worked from home;
9. Sick on 5/3/11, worked from home;
10. Sick on 5/8/11, worked from home;
11. Sick on 5/9/11, worked from home;
12. Personal issue don't work on 5/10/11;
13. Doctor appointment, worked 1/2 day 5/23/11;
14. Surgery 5/27/11 no work;
15. For 10 days after her surgery she had very difficult recovery, she used strong medicine for her pain and her work ability was very limited (hard to drive, move, speak and even to sit);
16. Chemotherapy started in June. Doctor wanted her off work for 11 weeks, but she continued to work without informing us of her doctor’s wishes.
17. 1/2 day worked from home 6/16/11;
18. 6/20/11 and 6/21/11 vacation;
19. 6/22/11 worked from home and was informed by phone that it is her last day to work from home and she has to come into the office or take disability;
20. 6/23/11 Temporary employee was hired to do her work;
21. Temprorary employee still on as of this date.
22. Employee has not worked since 6/22 and has not contacted us to setup her return.
23. 6/30/11 last paid day. The salary check was mailed to her home (pay period 6/15-6/30).

Relevant communications in writing-
1. 6/27/11- Email indicating our hardship and asking for employee for help with necessary information relating to her job.
2. 6/29/11- Employee returns message two days later with necessary information. Asks for “last paycheck.”
3. 6/30/11- We sent her an email indicating her employment status is absent for medical need without pay; and we have invited her back to work when she feels able.
4. 7/6/11- Employee asks for a commission check for June-
5. 7/7/11- We advise employee that due to no profit in June for the relevant department that there are no commissions.


Questions:
1. How do we officially fire the employee and mitigate our exposure to a lawsuit as a result of her injury?
2. Do we have to officially fire the employee? (FYI- She has left)?
3. Do we have to pay the employee through 7/15 because we didn’t fire her?
4. How do we fire this employee?
5. Can you supply a draft firing letter if possible (not necessarily a draft but some guidelines, etc)?
6. Do you practice in Ca? If so, where are you located?

Need help
Submitted: 3 years ago.
Category: California Employment Law
Expert:  socrateaser replied 3 years ago.
1. How do we officially fire the employee and mitigate our exposure to a lawsuit as a result of her injury?

A: Seems to me that you have already created a special legal status for the employee as "absent for medical need without pay." I don't know how this works with your written employment policies, because the phrase really has no legal meaning absent some definition provided by you as employer.

Assuming that your employment policies do not require you to engage in any special process prior to terminating the employee, then you can simply write the employee and state that since the employee has chosen to not work, that you presume she has resigned, and that you will process her termination upon that basis (send out the COBRA certification, etc.).

2. Do we have to officially fire the employee? (FYI- She has left)?

A: An employer generally wants to take the position that the employee has quit -- because then the employee is not liable to EDD for the involuntary termination, which may increase unemployment insurance contribution rates.

3. Do we have to pay the employee through 7/15 because we didn’t fire her?

A: A salaried employee's salary terminates with the final day of work, unless your employment agreement with the employee or employment policy states otherwise.

4. How do we fire this employee?

A: Based upon your facts, you don't need to fire the employee, because it appears that she has resigned. That said, if you want to involuntarily terminate the employee (i.e., "fire"), then you sinply tell the employee that "Due to business requirements, your services are no longer required."

5. Can you supply a draft firing letter if possible (not necessarily a draft but some guidelines, etc)?

Employee name:
Social Security No.:
Department: Status:
Reason for termination: Absent for consecutive days as of
Effective date of termination:

To:

As noted above, you have been absent without notice from your position for consecutive working days, as noted above. We therefore consider you to have abandoned your job, and in effect, to have resigned. This is in accordance with policy provisions as stated in_____.

You will be paid for any earned unused leave. An application for the return of contributions to the employee's retirement fund is enclosed; please complete the form and return it to the personnel office for processing.

Your rights in this action are explained in _____.

Please return any company property, including, for example, records, keys, equipment, books, reports, ID cards, and company credit cards, to your supervisor immediately.

Sincerely,

___________
HR Director

6. Do you practice in Ca? If so, where are you located?

A: Yes. I'm flattered by your interest, however I prefer to remain anonymous.

Hope this helps.

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socrateaser, Lawyer
Satisfied Customers: 33779
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you

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