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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7649
Experience:  Significant experience in all areas of employment law.
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I want to lay off an employee that i have had for 15 years.

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I want to lay off an employee that i have had for 15 years. He is 48 years old. He has not been able to put in 40 hours a week and often has to leave early because of family obligations. He will not communicate with me, even when I ask him straight out "whats going on, you seem disturbed". Plus he has complained to customers about me, the employer. Im not sure how to handle this. I need help.
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question.

Can you please tell me how many employees total you employ? Do you have documentation of this employee's drop in attendance, his early departures, or his complaints to customers about you?

I very much look forward to assisting you regarding this matter.
Customer: replied 2 years ago.

He has been my only part time/full time employee. (he does not put in 40 hours a week and takes the time off he needs with out asking, just telling) I wish this could go down differently, but I am afraid for my company, which is basically me, that if he acts out as a couple of customers have tole me he might, he has access to VERY sensitive information, and would have access to servers that hold that info.


 

Expert:  Patrick, Esq. replied 2 years ago.
Thank you very much for your reply.

You didn't directly answer my question about the size of your company, but from your comments I think I can assume that you do not employ more than 50 individuals. This is significant and I'll explain why in a moment.

First, you should know that 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 or federal law.

The Family Medical Leave Act provides a limited exception to the doctrine of "at will" employment and would fall into the category of terminations that are "otherwise in violation" of federal law. More specifically, the FMLA provides up to 12 weeks of protected job leave for employees who, among other things, must take time off to care for a parent, spouse or child’s serious health condition.

I mention this only because you state that the employee has missed work for "family obligations." If an employer is put on notice that an employee may qualify for FMLA leave, the employee may be entitled to the protections of the act, regardless of whether they formally invoke FMLA.

However, even if this employee DID have a family member with a serious health condition, it seems that your company is too small for FMLA to even apply. Further still, even if FMLA did apply, it would only protect an employee from termination in retaliation for them taking protected leave--not for termination for misconduct, and complaining about one's own manager to customers would certainly qualify as misconduct.

In short, employment in the state of California is "at will" absent a contract to the contrary, and there would be no legal basis under the circumstances you describe to circumvent this basic legal doctrine. Accordingly, an employer in your circumstance would be free to immediately let the employee go. Advance notice is not required. Severance is not required.

It is generally best to terminate employees on the spot. Although this may seem insensitive, it is especially important where the employee possesses sensitive company information and could potentially undermine the company if left with access to company computers and documents after being given notice he is let go. It is also generally best not to specify in detail the reasons for termination.

Since no reasons are required, stating more than is necessary will simply give the employee more to latch on to in the event that they were looking for some basis to sue.

Again, I am sorry to hear that you are in this position. Nonetheless, 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.
Customer: replied 2 years ago.


I am concerned that if I let him go what my financial obligations would be. I gues what I am asking is if I fyre him oposed to laying him off? I can talk to my accountant about this in the morning, but I am taking action by re-keying the shop tonight. Any help would be appreciated.


 


Thank you so much for your help.


 

Expert:  Patrick, Esq. replied 2 years ago.
Robert,

You are very welcome. "Fire" and "layoff" really mean the same thing from a legal standpoint--there is almost no meaningful distinction, and either way there would be no obligation to provide severance.

If you let this employee go and the EDD finds that they were not fired for willful misconduct, then they will ordinarily be able to file for unemployment benefits, which may affect your UI insurance premiums. However, you could argue that this employee complaining to customers about you qualified as misconduct that formed the basis for termination, though this argument would be weaker the more time that passes between this behavior and the employee's actual termination.

Other than your UI insurance rate, there would ordinarily be no other financial consequences to letting an employee go. Of course, you may incur business-specific costs, such as having to re-key your shop, but you would know what these expenses will entail better than any attorney, as they are not legal in nature.

Again, I sincerely XXXXX XXXXX this information helps you and I wish you the best. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 7649
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 3 other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

Thank you so much for your help. I really appreciate it. I just didnt know where to turn, as I have never been faced with this situation in the 20 years I have been doing business. And more, I wouldnt expect this kind of reaction from a "friend". But we are all faced with chalenges. Its knowing where to get the answers!


 


Thank you

Expert:  Patrick, Esq. replied 2 years ago.
You are very welcome for the assistance. I am quite sorry that you are faced with this situation, and I can see how it must be difficult. If you have additional questions in the future, please do not hesitate to return.

Best wishes to you.
Customer: replied 2 years ago.

I will.


Thank you.


I just wish Home Depot was open till 10, which I thought it was. Now I have to stay at the shop overnight because i didnt get there before 9 to get the re-key kit.


You know this just sucks. If people cant commnicate, there is no hope. Marriages, business partners, friends, employees.


Well at least I have James, 1: 2-4 to help me.


 


Thanks again.

Expert:  Patrick, Esq. replied 2 years ago.

No problem. It's tough I know, but hang in there. As coincidence has it, I was at Home Depot a couple hours ago with my wife.

Best of luck.

Customer: replied 2 years ago.

Thanks.


I was a little concerned with my paying for this answer.


I dont think I signed up for a monthly obligation, but by some of the email I have received, im not sure. I hope not. I just had this question that you answered.


 


Thanks again.


Bob


 


 

Expert:  Patrick, Esq. replied 2 years ago.
I'll contact customer service for you to confirm that you are not charged beyond this one question. Thanks again for coming to Just Answer.

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Patrick, Esq.
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