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LawTalk, Attorney
Category: California Employment Law
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Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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We are a small Plating Shop in San Jose California. We have

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We are a small Plating Shop in San Jose California. We have 18 employees and everyone’s job is critical to our success. We have been in business 54 years.

We have had a Secretary Rose that has work for us for 18 years. She does invoicing all day long. She is and was the only one that does it. Approximately 30-35 hrs. a week. We have her on Full Medical Program and she makes 18 dollars and hr. She has had a lot of medical issues as well.

In December 14th of 2012, She told us she was going in for a surgery and would return January 3rd 2013. She said she would call us and let us know what’s going on. She never called or came back. Her husband and Son use to frequent our shop Dailey and her husband also brings work once and a while from his place of work, we have not seen them either or had any calls. In about a week we were faxed a notice from Doctor that she would be off work until Feb 5 Still know call from her or her family.
Then 3 days before she is suppose to return we get another notice from doctor saying she will be off until 25th 2013. Still no call from Rose or Family. 3 days before she is suppose to return on 25th 2013; we get another fax form a new doctor she will be off until March 11th 2013. Still have not heard from Rose or her family since December 14th.

My Manager’s Daughter works for us. I had no choice but to train someone so we trained her, I had my bookkeeper come in and train her and I had to change the systems around to accommodate a better process for her to do Rose’s Job.
Now, she is doing it better and more efficiently as well. She also found a lot of mistakes Rose was making. At this point I cannot fairly or nor do I want to put Rose back into this position, and I would also have to retrain her.

We have heard from customers and a few employees that are on Facebook which Rose is too and they are indicating she is pissed off at manager, because no one has called her. She has obviously been to Doctors and out and about, not to mention her son and husband stopped coming by. I assume she could certainly let us know what’s going on. I also feel this is her responsibility. We respected her privacy and she said she would call us. We also have a million other things to do in a day then to get emotionally wrapped up with her process, which has always been chaotic.

If I did have her come back I only have a position that she would not want to do anyway. There may be a chance that since she is at a new doctor now that she may still be on continued medical leave and we might get another notice. I am just trying to figure out our options.

Please advise based on California Law San Jose.

Greg Marchand
Good morning Greg,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. A am a licensed CA attorney with nearly 3 decades of experience in various aspects of employment law, including quite a bit of employment litigation.

As your business is relatively small---less than 50 employees---neither the Family and Medical Leave Act, nor the CA Family Rights Act demand that you hold a position for an employee who goes out on disability.

So, you are within your legal right to terminate the employee immediately, simply based on their unavailability to work, once any accrued sick days have been used.

You could also consider terminating her for cause, based on a review of her work which proved to be filled with errors that were costly to the company.

So at this point, you are not obligated to accept her back. If you do, you do not have to offer her the same position, but you may offer her any work that you might have for her. You might even couch the decision to not have her come back to the same position because of all the errors you found in going through her past work.

The botXXXXX XXXXXne is, regardless of her medical condition, there is no law---federal or California--- requiring you to hold her job, or any job, for her, and you may give notice at any time that her position is no longer available---and that you wish her the best in her future.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug
LawTalk and 2 other California Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

Thank You Doug, I thought so. My intention is to be as responsible and fair as possible. We are not getting the same in return, however maybe there is a reason I do not know. I have always felt that it is the employees responsibility of the employee to contact employer to let them know what is going on. Not the other way around. Am I out of line on this? If I terminate or lay her off should I do this by Mail, Phone or wait until she comes in? Should I have you or an Attorney write the letter?


Greg

Hi Greg:

You wrote: I have always felt that it is the employees responsibility of the employee to contact employer to let them know what is going on. You are absolutely correct, it is the responsibility of the employee. The EDD has disqualified employees who have not kept in contact with the employer as regards XXXXX XXXXX on disability, from unemployment benefits.

You are not out of line in the least, letting her go at this point. So long as she is not owed any wages, and has no accumulated vacation pay that is owed, all you need do it let her know she is terminated effective immediately. No reason need be given---and generally nothing is to be gained by giving one.

It is unnecessary for an attorney to write the letter. All it need sat is that effective a given date, that her services are no longer needed, and that you thank her for past dedication and you wish her well in her future. if she is owed any back wages or vacation time, you must pay her that at the time she is terminated, under CA law. Other than that, you are set to go.


You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug

LawTalk and 2 other California Employment Law Specialists are ready to help you
Thank you for your positive rating of my service Greg. It has been my pleasure to assist you and I hope you will ask for me on JustAnswer should a future need ever arise.

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-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (8-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.
Customer: replied 3 years ago.

Thank You. You put my mind at ease and your service was so appreciated.


 


Warmest Regards


Greg Marchand

Truly, it was my pleasure Greg. You have gone above and beyond in being fair with this employee, and it is unfortunate that they are not as diligent in maintaining contact as they should be, instead of simply presuming that you will hold her job forever.

I wish you and your business success in the coming years.

Doug
Customer: replied 3 years ago.

Doug I do not know if you remember me, but i followed your advice to the tee. Now I am being sued for wrongful termination.


Greg Marchand

Good morning,

I'm very sorry to hear that. Keep in mind that the fact that an employer may be sued, but that does not mean that they did any thing wrong.

As I recall, you stated that you had less than 50 employees, that this employee was out for a surgery and was not able to return even after she had used all of her sick leave, had not been in contact with you and you had recently discovered that she was making so many costly errors that had only just come to light that you felt she should no longer be employer with the company.

Under the law, as the employee is an employee at will, and based on the poor work performance, their inability to come to work, and lack of any discriminatory intent on the part of the company, it would not appear that there is a legal basis for a meritorious wrongful termination suit.

If your former employee has made a claim, all you can do it to contact a local employment law attorney and defend against the suit. Based on all of your facts, it appears clear that you had a legal justification to let the employee go.

I wish you success.

Doug

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