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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33515
Experience:  Retired (mostly)
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Hi! I ask a question last Sept 14 or near that date. Im

Resolved Question:

Hi!
I ask a question last Sept 14 or near that date. I'm an employer. today, the question is the continuation of that one. We have established on that day that my worker has done "insubordination". but has filed worker's comp five months ago (April) his deposition date was sept 15. but his lawyer cannot make it so it was postponed to Oct 14. During that time your lawyer suggested that I dont fire him that day (Sept 14) 'cause I might get sanctioned (or I might have to pay him).If sanctioned means that I have to pay him.
Normally, His job is a cook. Normally, he flips chickens ,take out the cooked ones (grill fits 18 chicken) And the empty spaces . he put some more chicken or if he is busy he will call the back guy to put some more chicken for him. Until, I say something like " dont put anymore" Or just half a grill That means to fill it until there's 9 chickens. Today, I told him while he is flipping chicken " don't put anymore chickens. And he turn around and said "Who are you talking to?" At first, I did not quite understand him. so I ask him to repeat it. So he said "Are you telling me not put anymore chicken or the back guy?
Can I let him go? Do I have a strong case? It's like he always wants to fight or give me a hard time. two other occassions he said (not smiling) that I work differently.
Submitted: 2 years ago.
Category: California Employment Law
Expert:  socrateaser replied 2 years ago.
Hello,

The expert who originally corresponded with you is no longer qualified in this forum to answer California Employment Law questions. Please permit me to assist.

An employee who is discriminated against for filing a workers compensation claim has a damage claim against the employer. You are in a sticky situation, unless you have unmistakable evidence of insubordination. What I mean is that (1) you have made a written policy concerning employee conduct; (2) you have notified the employee of the policy; (3) you have proof that the employee violated the policy; and (4) the policy is "reasonable" for the purposes of managing your business.

If you do not have solid evidence of all four of the above-described elements, then you are taking a risk by firing the employee.

You can be cited with a misdemeanor/crime, and you can be assessed an increased workers' compensation damage claim of up to $10,000. Cal. Labor Code 132a.

Hope this helps.


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


socrateaser, Lawyer
Satisfied Customers: 33515
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Are you there?
Expert:  socrateaser replied 2 years ago.
I am, but according to the system, you are not. If you have a follow-up question feel free to ask, and I will answer, probably in the AM.
Customer: replied 2 years ago.
And also did you have a chance to read my question last Sept 14 with the other lawyer I think it was "wall street" something lawyer.
Expert:  socrateaser replied 2 years ago.
Yes, I've read your previous question. Do you have a new question for me?
Customer: replied 2 years ago.
What happened last night and on sept 14 , in your opinion - Is it discriminating him for filing workers comp? What about harassing the boss? or giving the boss a hard time? or smart mouthing? or another insubordination?

Expert:  socrateaser replied 2 years ago.
Ordinarily, I would say that you could terminate the employee "at will," regardless of what the employee may have said on Sep. 14 or in this new incidence.

But, because of the workers' compensation claim, you have a risk, and unless you have very thorough evidence of the insubordination, then you could get sued, and that places you in a risky situation.

That's why I gave you the necessary elements in my previous answer. You have to determine how much risk you are willing to accept. If you want to avoid the risk, then you will want to follow the elements that I provided you to the letter.

I'm trying to help you avoid shooting yourself in the foot. I understand that you're pissed, but you'll be even more pissed if you are sued for workers compensation discrimination.

So, get the evidence that I described in the manner I have described it, and then you won't have to worry about firing the employee.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 33515
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Thank you for letting me know that i will be sued for discriminating. on the incident on sept 14 , prior to that I did give him a notice about heating up the chicken before serving it. and on sept 14 -business was so slow when he came in at 3:30 I said to heat the chicken more because the business is slow , chicken is cold. and he turn around and said I bother him too much. I gave him the notice about 2 weeks before that and he totally ignore it and said his attorney told him not to sign anything.
And I have 2 employees that have written and sign about that incident.
will that make my case stronger?
From last nights incident is that insubordination or what kind of write up or notice (title for the notice) should I type up
Expert:  socrateaser replied 2 years ago.
I have 2 employees that have written and sign about that incident. will that make my case stronger?

A: Assuming that the employees are willing to actually testify in court consistent with their written statements, then yes, this would make your defense stronger.

From last nights incident is that insubordination or what kind of write up or notice (title for the notice) should I type up

A: I think perhaps you have been unduly influenced by the previous answer you received from the other expert. There is no "title" or "form" of notice required.

Let me go back to the elements that I gave you at the beginning of this discussion: What you need is proof that you are not discriminating because of the workers compensation claim, i.e., that you are terminating the employee for violating a reasonable employer rule:

  1. You must have a written policy concerning employee conduct (e.g., "Disparaging a supervisor is considered insubordination and is grounds for immediate termination.");
  2. You have provided a copy of the written policy to all employees;
  3. You have proof that the employee violated the policy (e.g., your employee's written statements); and
  4. the policy is reasonable for the purposes of managing your business (e.g., a policy that employees cannot "laugh" while at work is unreasonable; a policy that employees cannot chew gum is reasonable, especially in a food service establishment).
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 (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


socrateaser, Lawyer
Satisfied Customers: 33515
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
We are a small mom and pop fast food place we never have any thing formal in terms of policy given to empleyees during hiring. we never even give out notices or warnings for being late. I will make a policy tonight. Do you know where I can sort of reference for one. Do I have to let the employees sign the policy. And this guy is known for not wanting to sign anything(is that okay?) if everybody signs theirs.
And at the same time I want to hand him a notice about cooking chicken and putting on some more chicken. Does he have to sign the notice?
Expert:  socrateaser replied 2 years ago.
We are a small mom and pop fast food place we never have any thing formal in terms of policy given to empleyees during hiring. we never even give out notices or warnings for being late. I will make a policy tonight. Do you know where I can sort of reference for one.

A: Google: "California Employee Handbook", and you'll find loads of samples.

Do I have to let the employees sign the policy.

A: Yes, because you want it to apply to everyone -- not just the employee with whom you're having troubles.

And this guy is known for not wanting to sign anything(is that okay?) if everybody signs theirs.

A: Get a small dictation recorder and record the employee's objection to signing. He doesn't have to sign. You hae to prove that he was provided a copy of the policy.

And at the same time I want to hand him a notice about cooking chicken and putting on some more chicken. Does he have to sign the notice?

A: It would be good if he does sign, but you can't force him to do so. Record his objection.

Hope this helps.


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


socrateaser, Lawyer
Satisfied Customers: 33515
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you

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