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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Hi, I am a small business owner in California, I have 4 employees

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Hi,
I am a small business owner in California, I have 4 employees which two of them are Technician’s, one of the employees had recently a new born baby and decided to go on Paid Family Leave to bond with his new child, my business cannot operate with only one technician so I will need to hire a new employee.
I also was planning to lay off this employee anyway due to poor performance.

Do I have to keep the job for the employee on PLF until he comes back?
Can I fire him during his leave or not rehire him after he comes back?
What will be the right legal way to terminate his employment?

Thank you
Hello and thank you for entrusting me to answer your question.

Paid Family Leave is a form of unprotected job leave, meaning that it provides wage replacement for employees who elect to take PFL but does not guarantee they will have a job when they come back.

I'm going to assume that this employee is male, because you refer to "him." That being the case, California's Pregnancy Disability Leave Law (which does provide actual protected time off) would not apply because PDLL is clearly applies only to females. (See Government Code 12945) Furthermore, at four employees, you would be too small for PDLL to apply anyway, since the minimum cutoff is 5 employees.

In short, there is no law that would protect a male employee from termination under the circumstances you describe. Since employment in the state of Calfornia is "at will" absent an agreement to the contrary (Labor Code 2922), this employee and any other similarly situated may ordinarily be terminated at any time and for any reason.

No special language is required to effect the termination. The employee can simply be notified that "employment is terminated effective immediately," or that "poor performance with regard to XYZ warrants termination of your employment effective immediately."

Please let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for 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 4 years ago.

 


Thank you for the prompt response. Can I terminate him while he is on his leave just by sending him a letter of termination?

Jerry,

Thank you for your reply. There would be no obstacle to you terminating an employee in this circumstance while he is on leave. All that is required is notice of termination.

Please let me know if you have any further concerns and I will do my best to address them. If I have answered your question, I would be most grateful for a positive rating of my service so that I may receive credit for assisting you.
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