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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38241
Experience:  Retired (mostly)
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Okay... New Question. Im going to let her go next week.

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Okay... New Question. I'm going to let her go next week. I know it's not the "safe" way to do it, but I can't put my staff through another 3 months of probation. This employee has been on "probation" for 20 years, with no sustained improvement. There is no discrimination of any kind, and she can't possibly win a lawsuit of this nature. So I'll take my chance.... that said, I need to know what should or shouldn't be said. I could spend an hour detailing the exhaustive list of detrimental interactions, bad choices, and inability to change. But I'm not sure that would be wise. Should I give her a copy of her past reviews- all with negative outcomes- or should I be of few words? Giving her a copy might show a compelling case to let her go, which might make her less likely to retaliate. But I don't want to forfeit leverage. Thoughts.....?
Don't say anything. Ask the employee to come into the office either before the office opens or after it's closed (or on a day when the office is usually closed. That way, there will be no interaction with other employees, and less danger of some sort of physical altercation.

Have the employee's final paycheck ready, plus the EDD Form DE2320, Notice to Employee of Change of Relationship.

Collect any keys or other office property, and if there is something that the employee has (e.g., phone, computer, uniforms, etc.), but which she may not return, then you need to decide if it's worth the hassle to make up a story about why you need her to bring that stuff to the office, or just write it off as a cost of doing business -- because you don't want the employee to return, since it gives her an opportunity to "go postal."

If you are providing health insurance, then contact the health care plan and have them send the employee a COBRA (or Cal-COBRA) certificate of continuing coverage.

If there is a retirement plan, and it's managed by an investment institution, then contact them and get whatever you need to provide to the employee so that she can rollover or otherwise independently manage her retirement benefits. You may be able to just give the employee a contact phone number.

If you are concerned for your own safety, or perhaps that the employee may decide to claim some sort of attempted sexual harassment, then have someone else with you during the termination meeting. That person doesn't need to be a current employee -- but if it is, it should be someone with whom the terminated employee does not generally work.

It's up to you as to whether or not you offer the employee an opportunity to vent or ask questions. If it were me, I wouldn't permit any further comment, nor would I offer any. In short:

  • I have decided to terminate your employment, effective immediately. I realize that this may come as a complete surprise, however I have made my decision and it is final. I am required by law to provide you with certain legal notices -- you will find them in this folder, along with your final paycheck. I will be happy to provide a favorable recommendation to any prospective employer that contacts me concerning your prospective employment. Also, I do not intend to dispute your unemployment insurance benefit claim. I will simply state that I have decided to take a different direction with the business, and that direction does not include you.
  • Optional: please give me your office keys, and [other office equipment]. If you didn't bring any of these items with you, then [(1) I will require that you return them by no later than ??/??/????; or (2) you may keep them as a fringe benefit].
  • Do you have any questions about the information that I've just provided?

I actually wouldn't answer any substantive questions about anything other than the termination forms, etc. My answer to anything else would be, "It's my decision and it's final -- and, I'm not going to explain, so there's no point in asking.

 

I would not write anything down, other than the legal notices that are required. Anything you put in writing may end up being used against you.

 

Hope this helps.

Customer: replied 3 years ago.

You Rock! Will adhere to option A to the letter. You have helped me more than you can imagine. I will sleep well on this decision.

You're welcome and good luck!
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