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Patrick, Esq.
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Category: California Employment Law
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I have a probationary employee and she is not performing as

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I have a probationary employee and she is not performing as expected. How do I legally lay her off without any issues with EDD. We are based in california
Hello again and thank you so much for your question.

If by "issues" with the EDD, you mean a raise in your unemployment insurance premiums, there may be no way to avoid that, as all employees who have earned sufficient base period wages (either $1300 in one quarter of their "base period," or at least $900 in their highest quarter and total base period earnings of 1.25 times their high quarter earnings) who find themselves unemployed through no fault of their own are typically entitled to benefits, and whenever benefits are approved for a claimant whose base period wages your company paid, there will typically be a small change in your premium.

An employee who is found to simply not perform up to par and is laid off because of that is still unemployed "through no fault of her own," according to the legal definition of "fault" in this context. In order to successfully contest the employee's claim for benefits, you would have to demonstrate that her failure to perform as expected rose to the level of misconduct, which would require showing repeated violation of company policy or some other knowing or willful violations that were within the employee's control. See here for more information:

See here generally for more information about all the various ways by which an individual can be disqualified on grounds of misconduct (there are many others):

In short, if your employee simply isn't meeting standards but is making a good faith effort, there is likely no way you can deny her benefits, and thus, there will be some small impact you your UI premiums. You should, however, rest assured knowing that the impact to your premiums is unlikely to be substantial, and if you are a small employer, will likely amount to less than a couple hundred dollars a year (note that's an extremely rough estimate, but this usually is the case).

As always, please feel free to let me know if you have any further concerns. 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. and other California Employment Law Specialists are ready to help you

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