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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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If an employer (or possibly just the middle management team)

Customer Question

If an employer (or possibly just the middle management team) is deciding to do a reorganization specifically changing positions (roles and pay levels) not communicating their intentions to the affected employees, can the employer fire the current employees (including digging up dirt on employees with good performance evaluations) to meet their reorganization goal? Is this legal? It seems unfair, especially if the employee with the good performance evaluation attempts to move to another organization with the same employer. That employee's reputation has been tarnished making it difficult to be rehired into another position. Financially, they lose out on severance (financially benefits to the Employer) because they were fired instead of being layed-off. In addition, there is emotional stress for affected employee and their family members.

Could it also be the intention of the employer to fire instead of lay-off because of the financial and rehiring benefits?

When employer lays off people isn’t there a time frame in which employer cannot rehire or open new positions?

Does the employer's intentions to do a reorganization need to be communicated to the employees affected?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  ScottyMacEsq replied 2 years ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Can you tell me what state this is in, and whether there are written policies regarding such terminations (and whether intentions have to be communicated or not)?

Customer:

State of California. The employer is Stanford University and I believe there would have some written policies. I do not know whether intentions have to be communicated or not.

Customer:

Typo on earlier reply. State of California. The employer is Stanford University and I believe the University would have some written policies. I do not know whether intentions have to be communicated or not.


ScottyMacEsq :

Thank you. Unfortunately this would be a California employment law question (a category that I am not an expert in, so I am going to opt out and allow a California attorney to assist further).

Expert:  Patrick, Esq. replied 2 years ago.
Hello there. I am a different experience who is familiar with California law and I am very happy to help you.

Unfortunately, the laws in this area strongly favor the employer. Absent an employment contract guaranteeing employment for a specified period of time, employment in the state of California is presumed to be "at will." More specifically, California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other."

What this means is that an employer is free to terminate employees for any reason whatsoever, even a reason that is entirely unfair, unless the underlying motivation is discriminatory or otherwise in violation of California law.

An employee need not have poor performance reviews in order to be terminated. An employee also need not receive advance notice of termination or re-organization. Additionally, there is no limit on an employer's right ot hire other employees shortly after letting someone go.

In a nutshell, an employer is free to hire and fire employees at any time and for any reason, unless the underlying basis for the hiring dicisions is discriminatory in nature. Employment decisions are only "discriminatory" if they are based on an employee's race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation.

Finally, with certain extremely limited exceptions set forth under the WARN act, an employee has no affirmative legal duty to provide severance to employees who are laid off, though it is typically good form and etiquette to do so. The primary exception in which severance must be paid as provided in the WARN act is in cases where an employer with at least 100 employees that lays off at least 50 during a 30-day period.

I realize that the law is not in your favor here and I am truly sorry to have to deliver bad news. If it is any consolation, I truly believe that the laws of "at will" employment in this regard give too much power to the employer and often produce highly unfair results. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 7652
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Expert:  Patrick, Esq. replied 2 years ago.
As an addendum to my answer above, I see now that in your chat with the previous expert you stated your employer is a univeristy.

Do you have a collective bargaining agreement that governs your employment? If so, what does it say about your employer's right to let employees go?

The rights of unviersity employees often differ from the rights of employees in other private industries. Please if you can, clarify the above for me.

Thank you very much.

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Patrick, Esq.
Patrick, Esq.
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Significant experience in all areas of employment law.