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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 32620
Experience:  JD, 17 years experience & recognized by ABA for excellence in employment law.
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Hello Tina, I have another question for you, but I will

Resolved Question:

Hello Tina,

I have another question for you, but I will give you the background first:

We have an employee that has suffered a work related injury, he slipped and fell on the job. This was over a year ago. Since that time he has had surgery and multiple follow up appointments. He was officially released to full duty a couple of months ago and his Workers Comp case was closed. During that time however, we have had multiple employment related problems with this employee. Not listening to managers, showing up late to work, getting "confused" with his days off and not showing up to work, etc. He always seems to somehow try and bring up his previous injury any time we have disciplinary problems. When he found out that the case was closed, he immediately went back to the doctor's office and said he is still in pain and they re-opened the case. Since that time, problems have intensified. He constantly mentions a 4 hour restriction due to his injury. However, the doctor has never specified a time restriction at work. The only modified duty he is on is lifting 25 lbs. This does not deter him from bringing up the fact that he can "only work 4 hours". It has become such an issue that we talked to the doctor AND the WC adjuster sent a nurse to the appointment with him to address the issue. The doctor has flatly told him and us "there is NO time restriction". However, he keeps asking us to go home early because he is in pain. The doctor sent us a message that she "does not believe him" and seeks to close the case again for a second time....his only restriction is not to lift 25 lbs and she made that clear to us and to him.

The other day we caught him eating food without paying for it and when we brought this to his attention, he immediately said "I'm in pain I need to go home". When we wrote him up and had a meeting with him, he kept asking us "so you are writing me up because I am in pain and I ask to go home?" We repeatedly told him that we are writing him up because he ate food without paying for it!!! This is a violation of company policy and we follow it consistently. This did not deter him as he kept saying, "so you are writing me up because I am in pain and asked to go home?", even though we kept telling him this has NOTHING to do with it!

This situation has reached a breaking point recently because he came to the manager and told her, "I need to go home now and I am not going to work tomorrow"....this was on a saturday, a very important time in the restaurant business. He said he would call us the next day and let us know when he wants to work. He called us the next day and said he saw a doctor and the doctor allegedly told him "don't work until MAYBE thursday" We asked him what "maybe" meant and if he could provide us with the doctor's note. He said he will BUT WE HAVE STILL NOT RECEIVED THE DOCTORS NOTE!

So this brings us to where we are today. I strongly believe that he has an angle working; to what end I do not know. Right now we need to know what to do. The workers comp adjuster/supervisor is saying that now this has become an employment law issue and we should seek the advice of an employment law attorney. They also recommend we document everything, which we are. It is tuesday and we still have not seen this doctors note.

My question is: What are our options? What should our strategy be? I know that this is slightly complicated because it is mixed with WC, but we dont want to terminate him and then have him sue us for unlawful termination because of his "injury". On the other hand, we cannot continue to operate a business where our employee is dictating to us when he can and cannot work and comes and goes to work as he pleases.

Thank you
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Tina replied 2 years ago.

Hello again and thank you for requesting me.

Given the employee's history, you should expect him to take legal action if you terminate him and do not obtain a release of claims from him in return for a severance package.

Knowing the likelihood that legal action will follow, it is critical that you document all the reasons the employee is being terminated. It is NOT illegal to terminate an employee who does not comply with company policies or is insubordinate, which appears to be the case here. So it is important to document each incident independently and present it to the employee to acknowledge that he has seen the warning in writing.

It is also important to follow the same policies and procedures you would for an employee that has not filed a worker’s comp claim, so it can be shown that you did not retaliate against the employee for filing a worker’s comp claim, but for reasons any other employee would be terminated.

I would also consult further with a local employment law attorney so they are in a position to respond promptly to any action the employee may take against you.

Or, you could request that the attorney draft an enforceable severance and release agreement if you wish to pay the employee severance in return for releasing any claims he may have against the company. That is often the most cost-effective option to prevent a lawsuit.

It has been my pleasure to assist you. Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time.

Kindly remember to rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and reply to me via the REPLY TO EXPERT or CONTINUE CONVERSATION button with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to explain your concern to your satisfaction. Please also remember that I cannot control whether the law is favorable to you or not, so please don’t shoot the messenger.

Thank you very much and all the best to you,

Tina

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:

http://www.justanswer.com/law/expert-tina/

 

Customer: replied 2 years ago.

So what would be your ultimate recommendation then based on your experience? To terminate the employee or "wait him out" or compile more data? In other words, hes leaving work because "hes in pain" although his doctor doesn't seem to agree. Is it an unnecessary risk to fire him right now? I'm looking for your total advice knowing the situation.


 


Thanks

Expert:  Tina replied 2 years ago.
Hello again,

Not having the opportunity to review the documents involved, the employee's personnel file, or anything involved in this case, I would not be in a position to give you a firm opinion and the TOS we both agreed to prevent me from providing legal "advice" here as compared to legal information.

If the circumstances leading to the employee's termination have been well-documented and the employee is being terminated for the same or similar reasons as other employees who have not had worker's comp claims pending, that would typically provide protection from a judgment being entered against you, although there is nothing to prevent the employee from pursuing a lawsuit altogether.

I would likely terminate the employee, but seriously consider paying severance in return for a release of claims to protect the company from the possibility of a lawsuit being filed.

It has been my pleasure to assist you. Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time.

Kindly remember to rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and reply to me via the REPLY TO EXPERT or CONTINUE CONVERSATION button with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to explain your concern to your satisfaction. Please also remember that I cannot control whether the law is favorable to you or not, so please don’t shoot the messenger.

Thank you very much and all the best to you,

Tina

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:

http://www.justanswer.com/law/expert-tina/

Tina, Attorney
Satisfied Customers: 32620
Experience: JD, 17 years experience & recognized by ABA for excellence in employment law.
Tina and other California Employment Law Specialists are ready to help you

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Tina
Tina
California Employment Lawyer
32620 Satisfied Customers
JD, 17 years experience & recognized by ABA for excellence in employment law.