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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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I hired a manager this past April. His performance was not

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I hired a manager this past April. His performance was not up to par in several areas and after other attempts were made and I consulted with HR, I issued a written warning in a meeting with the manager on Aug. 8th. On Aug. 9th, we was witnessed packing up almost all of his belongings and went home for lunch which had never occurred in the past. Then I received an email that the manager felt that his blood pressure was high and he was going to see his doctor. That afternoon, I received an email from him, saying that his doctor was ordering him to be put on immediate disability leave for 30 days. Both a colleague and I remember this manager mentioning early in his employment that he has "friends" in the medical industry that would write any notes or orders for him any time.
I was already down by two headcounts and this action caused a severe amount of stress and chaos for my trade show and event team. Sept and Oct are the busiest months of the year (including travel) for trade shows. I have since hired a contractor whom I'd like to make permanent (his replacement). As the 30-day deadline arrived on Sept. 9th, we heard from the manager that his doctor has ordered an additional 30-day leave.
My concern is that the contractor is looking for a permanent position that pays benefits and I understand that legally the manager can extend his disability up to 6 months. The contractor wants to work for our company but I may lose her if a more secure position is found. I want to see if there's a way I can tell the manager that his position is no longer available and terminate him so that the risk of being sued is minimized. I can't wait for him to return indefinitely and need someone who can do his job that includes travel. HR is concerned that since I put him on a 30-day performance plan in the written warning, we have to keep his position open and allow him to come back and have 30-days to improve. The business groups this manager supported don't want him to return and are frustrated with having another new person in the past 5 months. It's adversely affected morale and added stress in the dept. I feel pressured and distracted by the need to make the contractor feel happy all the time so that she doesn't leave.
Any advice about how I can convince HR and senior management to terminate the manager would be greatly appreciated.
Hello,

Based on your stated facts, the employee does not qualify for FMLA/CFRA leave, i.e.:

1. Employer has 50 employees within 75 mile driving distance of employee worksite;
2. Employee has worked at least 12 months for employer; and
3. Employee has worked at least 1,250 hours for employer.


If the employee does not qualify, then the disability leave is unprotected by law, and you are free to terminate the employee "at will."


Hope this helps.

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Customer: replied 5 years ago.
Does it make a difference or affect the law since I issued a 30-day performance plan prior to his leave?
A performance plan is an offer to maintain employment if the employee follows the plan. By immediately taking leave, the employee has effectively either rejected the plan, or created conditions that permit you to rescind the plan on grounds of mutual mistake -- because you reasonably believed that the employee would be available to perform under the plan, not that he/she would immediately take disability leave.

In my view, the plan does not prevent you from terminating the employee, pursuant to Labor Code 2922 (at will employment doctrine). It does, however, create some additional risk and uncertainty.

The only way to mitigate that uncertainty is to offer the employee a severance package, i.e., money in exchange for a waiver of the right to sue.

Hope this helps.

NOTICE: My goal here is to educate others about the law. I am always available to answer your follow-up questions after you click Accept – however, if you do not click Accept, the website gets paid, and I receive nothing. This is true, even if you are on a subscription plan. So please click Accept, so that I will be able to continue to provide this service for others in the future.


And, if you need to contact me again, please put my user id on the title line of your question (“To Socrateaser”), and the system will send me an alert. Thanks!


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