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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1843
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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We are about to terminate an employee, at will. Should we give

Resolved Question:

We are about to terminate an employee, at will. Should we give him anything in writing other than his paycheck & COBRA options? He has the possibility of being litigious.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 1 year ago.

Brandon, Esq. :

Hello and thank you for your question today.

Brandon, Esq. :

Are you online with me?

Brandon, Esq. :

There are no additional written requirements. However, as to whether or not you should give them something in writing is completely dependent on the reason why this person is being fired. When there is a writing in place it can be used against you in either a defamation case, or as proof of discrimination based on a disability. On the other hand, if the employee doesn't understand why they are fired they may start to believe they were REALLY fired because of a protected category (age, race, etc.) If you can be frank with your reasons for firing the employee, then having a paper trail detailing what this employee did is a good idea. This is because you can show that the reasons existed at the time of the firing, and you are not creating them for the purposes of litigation. However, if you are firing them because of their religion, because they lodged a complaint against you, or for any other illegal reason, you definitely do not want this in writing. So, in short, if in the writing you can point to a breach of policy, or other legitimate reason why this individual is fired, then it may be a good idea. If you cannot, then you should not.

Brandon, Esq. :

Please do not hesitate to 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.

Brandon, Esq. :

Have a wonderful rest of your day.

Customer:

sorry; had to walk away for a moment...

Brandon, Esq. :

Not a problem.

Brandon, Esq. :

Does that fully answer your question?

Customer:

is there a template for this kind of letter to the employee noting the reason? Thank you again for your quick response!

Brandon, Esq. :

There are lots of templates online, however in general, the letter will be very specific to the individual in question

Brandon, Esq. :

For example, if the reason is for economic downturn it can look something like this

Brandon, Esq. :

Date


Mr. Thomas Main


XXXXX

Topeka, KS 66605


Dear XXXXX,


This letter confirms our discussion today that you are being laid off from your employment with Fogerty Subscriptions effective immediately.


Unfortunately, economic conditions in the industry have resulted in slow sales. We decided to eliminate the quality department and all positions. Quality functions will move to manufacturing and be handled by existing employees in that department.

Brandon, Esq. :

You will receive one week’s severance pay for each year that you have worked for Fogerty Subscriptions. In your case, with 12 years of employment, you will receive 12 weeks of severance pay at your normal weekly salary. During the time period that the severance covers, we will continue to provide health insurance coverage.


Additionally, payment for your accrued PTO will be included in your final paycheck* which you will receive on our regular pay day, Friday. You may pick up this check from the reception desk or we can mail it to your home.


You will receive the severance payment once you have signed and returned the enclosed release of claims document.


You can expect a separate benefits status letter that will outline the status of your benefits upon termination. The letter will include information about your eligibility for Consolidated Omnibus Budget Reconciliation Act (COBRA) continuation of group health coverage.


We have received from you: your office key, identification badge, and the company owned laptop at the layoff meeting.


You will need to keep the company informed of your contact information so that we are able to provide information you may need in the future such as your W-2 form.


We want you to know that this layoff is not a statement about your work for Fogerty Subscriptions. You have been a dedicated, contributing employee for 12 years. If you wish us to speak on your behalf to potential employers, please sign and return the enclosed form. It gives us your permission to discuss your employment with potential employers.


Please let us know if we can assist you during your transition.


Regards,


Name of Human Resources Representative or Company Owner


Enclosures - 2

Brandon, Esq. :

Here are many more examples

Brandon, Esq. :

http://humanresources.about.com/od/sample-termination-letters/tp/sample-termination-letters.htm

Customer:

Not a layoff .He was suspended without pay for the same offense: here is the notice we gave him: he did pass the PIP period

Customer:

Performance Improvement Program (PIP)


This communication is to give you written notification of inappropriate conduct over time, especially between September 24 and October 1, 2012. You have been warned about these issues verbally, and it is time for us this to be formalized into a program. In light of this, we are notifying you that your performance is not up to the required standards of conduct for Source One Technologies.


In view of the above, you are being put in a Performance Improvement Plan for a period of 90 (ninety) days from November 7, 2012. No violation will be tolerated: inappropriate comments, racial comments, name calling, driving unsafely. The concern about driving unsafely is from the incident in September where you acknowledge that you exceeded the speed limit to make a delivery to a customer. It is imperative for you to follow all laws and drive safely.


You will be evaluated on your performance by your supervisor and HR during this Performance Improvement Plan period. You will also receive feedback on your performance, as appropriate. All evaluations and ratings will be shared with you.


On successful completion of the Performance Improvement Plan, you will proceed with your current role or any role that the Company deems fit you. If, however, you are unable to meet specified targets during or at the end of the Performance Improvement Plan period, we reserve the right to take any disciplinary action, including suspension without pay or terminating your employment.

Brandon, Esq. :

That does not sound like a letter of termination but rather a letter prior to termination.

Brandon, Esq. :

If you give them this, they will believe they are still employed

Customer:

this was the letter from last year, just for context.

Brandon, Esq. :

Ah okay, then you would use this letter as a starting point for the termination letter. It could sound something like this

Brandon, Esq. :

Date


Mr. XXXXX XXXXX


XXXXX

Cedar Bluffs, CA 68015


Dear XXXXX,


This letter confirms our discussion today that your employment with Sealy Company is terminated, effective immediately.


Your employment, as discussed during the termination meeting, is terminated because you (detail all of the things you mentioned he did above)


Your subsequent commitment of resources, after being told explicitly not to commit the resources, was a gross violation of company policy and our code of conduct.


In attempting to cover up your commitment, you tried to involve several other employees in your deception. This is behavior that cannot be countenanced and it also violates our code of conduct.


Payment for your accrued PTO will be included in your final paycheck* which you will receive on our regular pay day, Friday. We can mail your final paycheck to your home or you can make arrangements with your supervisor to pick it up.


You can expect a separate benefits status letter that will outline the status of your benefits upon termination. The letter will include information about your eligibility for Consolidated Omnibus Budget Reconciliation Act (COBRA) continuation of group health coverage.


We have received from you your security swipe card, your office keys, and the company owned laptop and cell phone at the termination meeting.


You will need to keep the company informed of your contact information so that we are able to provide information you may need in the future such as your W-2 form.


Please let us know if we can assist you during your transition.


Regards,


Name of Manager or Company Owner

Brandon, Esq. :

The second part can include something like your subsequent (talk about future problems)

Brandon, Esq. :

Just make sure that everything you say can be backed up with evidence

Brandon, Esq. :

so that you do not run into a defamation claim later on

Brandon, Esq. :

If he argues that you made a false statement of fact about him, you could get yourself in trouble

Customer:

this is helpful. he is a wacky, somewhat unstable guy and will take this hard. He is Hispanic, in his late 50s so may scream protected class. Any other guidance?

Brandon, Esq. :

That is it. Just be frank, and make sure that you do not give him any reason to claim that you are making a false statement of fact about him

Brandon, Esq. :

Have I fully answered your question today?

Brandon, Esq. :

Please do not hesitate to 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.

Brandon, Esq. :

Have a wonderful rest of your day.

Customer:

how about giving him a copy of last year's letter?

Brandon, Esq. :

he is entitled to his employment file if he asks for it

Brandon, Esq. :

however all you need to do is just mention the letter in the final letter

Brandon, Esq. :

such as on December 1st you were given your final warning. since then, you have (detail all the things he has done)

Brandon, Esq. :

or on December 1st you were given your final warning wherein you were told that (talk about letter)

Brandon, Esq. :

there is no reason to give him the additional paperwork however

Brandon, Esq. :

the issue here is just having something clearly detailing why you have a legitimate reason to fire him and that there is no possibility that you are discriminating against him for age.

Brandon, Esq. :

Does that make sense?

Customer:

yes. this isn't about age

Brandon, Esq. :

I completely understand that, however, I tell clients all the time, that at will employment means that you are willing to accept the employees definition of what happened. You just want to make sure that if this person makes a claim to the DFEH or EEOC you can very quickly show them that there is no merit to this

Brandon, Esq. :

and a solid paper trail will do this

Brandon, Esq. :

Have I fully answered your question today?

Brandon, Esq. :

More about the requirement to give the employee their personnel files and records can be found here:

Brandon, Esq. :

http://www.dir.ca.gov/dlse/faq_righttoinspectpersonnelfiles.htm

Brandon, Esq. :

If you need help with anything else, please do not hesitate to ask.

Brandon, Esq. :

I am going to go ahead and step out of the chat now.

Brandon, Esq. :

If you need no further assistance, please do not forget to provide a positive rating so that I may receive credit for assisting you. If you do have additional questions or need additional information, please ask and I will respond to you as soon as I can.

Brandon, Esq. :

Have a wonderful rest of your day.

Brandon, Esq., Lawyer
Satisfied Customers: 1843
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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Brandon, Esq.
Brandon, Esq.
California Employment Lawyer
1843 Satisfied Customers
Has received a certificate of recognition from the California State Senate for his outstanding legal service.