How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Patrick, Esq. Your Own Question

Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7202
Experience:  Significant experience in all areas of employment law.
60109343
Type Your California Employment Law Question Here...
Patrick, Esq. is online now
A new question is answered every 9 seconds

I need to terminate an employee. She has been counseled many

Resolved Question:

I need to terminate an employee. She has been counseled many times for behavior and attitude issues. I've given her a lot of space and consideration since she is a single mom in the past 6 almost 7 years.

She is now on maternity leave and I told her before she left that for the benefit of my company financially, I was going to have to change the hours of this position. I have determined that the position is now only maybe 6 hours a week. I have someone who is temporarily doing her complete job in that time frame. More efficiently.

I don't want to create a problem and possibly be sued. I don't really want her to come back because I have discovered so many mistakes and other problems. Can you please tell me what I am supposed to do and how to do it legally.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to assist you. My name is XXXXX XXXXX I will do everything I can to answer your question.

By "maternity leave" do you mean pregnancy disability leave? Or has she already had her child? Can you also please tell me how many total employees you have?

Lastly, can you please tell me whether you have any documentation of her behavior and attitude issues?

I very much look forward to helping you on this matter.
Customer: replied 1 year ago.

She has had her baby. It is about 3 weeks now. I have two total employees including her in my office (not inclusive of me).


 


I have some documentation, but mostly these have been conversations about complaints from clients, complaints about her not remembering what I asked her to do. I had to tell her about 2 months before she left that she couldn't continue to bring her daughter to work as we are not a child care facility and she misunderstood and thought that I meant that when she had the new baby too.


 


I provide supervised visitation monitoring and the complaints about her daughter there while parents have to be supervised had escalated in the months prior to her leaving. She continued to bring her daughter.


 


she seemed to comprehend the discussions about her attitude and like I said, it would seem alright for a couple of weeks and then slip back. It became more prominently a problem just prior to her leaving. Little to no work getting accomplished as well. (I guess that is called baby brain).

Expert:  Patrick, Esq. replied 1 year ago.
Thank you for your reply.

As a company with only 2 employees, you may be surprised to learn that there is NO law which requires you to provide pregnancy leave or maternity leave of any kind. California does have something called the Prengancy Disability Leave Law, which requires covered employers to provide up to 4 months of protected job leave to pregnant employees disabled by their condition and unable to work.

However, the "PDLL" applies only to employers with 5 employees or more. Moreover, if this employee is no longer "disabled' by her pregnancy, no law would protect her job if you had 5 employees even if PDLL did apply. The only law which provides for true "maternity leave," wherein an employee gets to spend time after birth to bond with her baby, is the Family Medical Leave Act, which applies only to employers with 50 or more employees. In that case, the employee is entitled to up to 12 weeks of unpaid leave for bonding time.

Even if any or all of these laws applied, which they do not, no law provides absolute job protection--simply protection from retaliation for being away from work--and so an employee can still be terminated for poor performance even if she is on or has recently taken pregnancy or maternity leave of some kind.

Of course, when an employee does fall within the protections of pregnancy/maternity leave laws, the employer will want documentation of the performance issues for which the employee is being fired so as to rebut allegations of unlawful pregnancy leave retaliation.

Here, it seems like you would have ways of proving the basis for your decision, but again these laws simply do not apply and so this is not even necessary.

Absent the application of any pregnancy leave law or a contract which otherwise guarantees this individual's employment for a set period of time, her employment is by default "at will" and as such can be terminated at any time for virtually any reason.

Ordinarily speaking, it would be best to terminate this employee by providing them with written notice and an explanation that the decision is for performance related reasons. Labor Code 201 will also require that you pay her final wages immediately at the time of letting her go.

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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes and kindest regards.
Customer: replied 1 year ago.

thank you, XXXXX XXXXX Now it is how to be tactful. I appreciate the answer so much!

Expert:  Patrick, Esq. replied 1 year ago.
It's always preferable if you can end things on somewhat good terms, so tact is good idea. Again, 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.

Best wishes moving forward!
Patrick, Esq., Lawyer
Satisfied Customers: 7202
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Attorney

    Satisfied Customers:

    857
    JD, 16 years experience & recognized by ABA for excellence in employment law.
  • http://ww2.justanswer.com/uploads/PI/PIExpert/2012-7-1_152453_Attorney.64x64.jpg Brandon, Esq.'s Avatar

    Brandon, Esq.

    Lawyer

    Satisfied Customers:

    332
    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • http://ww2.justanswer.com/uploads/PH/phoenixrising119/2012-7-26_11214_043.64x64.jpg melissamesq's Avatar

    melissamesq

    Attorney

    Satisfied Customers:

    47
    Represent clients to maximum recovery in employment cases.
  • http://ww2.justanswer.com/uploads/IG/Iggy1001/2013-11-20_23344_JApic.64x64.jpg Joseph's Avatar

    Joseph

    Lawyer

    Satisfied Customers:

    3511
    Extensive experience representing employees and management
  • http://ww2.justanswer.com/uploads/JK/jkiani22/2013-11-18_15348_JacobKiani1copy2.64x64.jpg jkiani22's Avatar

    jkiani22

    Attorney

    Satisfied Customers:

    24
    Attorney
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel

    Lawyer

    Satisfied Customers:

    32
    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.