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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34091
Experience:  Retired (mostly)
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I am a manager for a corporation and I need to terminte someone.

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I am a manager for a corporation and I need to terminte someone. I have an Administrative Assistant and she was caught doing work on our company computer and work that is a conflict with our company. It is against our employee policy that she signed.

Also, I have just learned about a pattern that I new existed a little bit, but did not realize is worst then I thought. I hired a new employee that has been working in our office 30 days now and she told me that this emoployee runs over to here every time I leave the office to complain about how I treat her. This person does this with everyone and is causing a very bad environment in my office. I have been documenting bad behavior for some time now.

I want to make sure that I am legally prepared as my boss does not like to go to HR and wants me to hanlde it myself. This is new to me but I do know a trouble maker when I see one and I know this will not stop. Advise please to make it legal and clean?
Submitted: 11 months ago.
Category: California Employment Law
Expert:  socrateaser replied 11 months ago.
Hello,

In my opinion, you are about to make a very big mistake. Terminating an employee without consulting with HR first can get you terminated, too. The fact that your supervisor does not want to involve HR causes me to question whether or not you are being set up to be fired.

Before you do anything else, you need to get something in writing from your supervisor, directing you to terminate these two employees without first seeking a consultation with your HR department. If you don't, you may be the third employee fired in the same time period.

If you really want to discuss the employment termination rules, I'll be happy to do so, but I think you may want to seriously consider the issue that I'm raising, before doing so.

Please let me know if my answer is helpful. And, thanks for using justanswer.com!
Customer: replied 11 months ago.

I see where I might have mislead you, my apologies. In another situaiton 6 months ago my boss did not want to go to HR and it was an issue against another employee that reports to me. It did not involve me at all, it was another manger in the office she worked with. I asked him why he did not want to go to Hr and he said becasue it was so Final.


In this situaition he did ask me if I want to go to HR and gave me that choice.


My only fear is that she will then say all the stuff that she has said about me to HR and there has been a person on one occasion that called me a micro manager. I have always been a fan of our HR department, I think it is their job sounds like you would take that route and let them handle it? Is that correct?


 


Expert:  socrateaser replied 11 months ago.

I absolutely would let HR handle the situation. As a veteran of a DJIA 30 corporation, my experience is that not following the process is the fastest way to the exit (unless you're a duly appointed corporate officer, or member of executive management -- or someone else who is not an "at will" employee).

There are all sorts of "gotchas" here: unlawful discrimination, breach of implied contract, pissing off some other department head, various written legal notices required by California and federal law (EDD brochures and notice of change in employment relationship [Labor Code 1089). COBRA continuation coverage notice; ERISA retirement plan notice, final paycheck must be tendered to any nonexempt hourly employee immediately at notice of termination, etc., etc.). Some of this won't have any relevance to the employee whose only been with the company for 30 days -- but for the other employee, messing up some of the notice requirements can create liability for the employer -- and that will definitely blow back on you.

Hope this helps.

Customer: replied 11 months ago.

I see that is why I hired you!


My bosses suggestion was that we talk to her first and just give her a warning and not get HR involved and then if it happens again we would at that time get them involved.


He said he got that from his attorney that he has on retainer so it does not make me the bad guy?

Expert:  socrateaser replied 11 months ago.
Hmmm....

I have to tell you, it's extremely unusual for a manager to hire outside legal counsel to advise on internal employment matters. It makes me think that your supervisor feels that his/her position in the corporation is at some risk.

Be that as it may, a written warning must be provided to HR, so that they have a record of what's happening in the employee's personnel file. California employees are entitled to inspect their personnel file on reasonable request at any time. Labor Code 1198.5.

So, I don't really see how you can avoid having HR involved in this matter, if you intend to warn the employee -- other than in an informal meeting and only verbally.

Hope this helps.
Customer: replied 11 months ago.

That has been my thought exactly since he seems so scared of HR.


As I mentioned, an employee said I was a micromanger and demeaning. That is what he told me, I have no other facts other then he asked if I would accept some additional managers training and of course I said I would.


 


Maybe he is protecting me from HR if I tell them she is gossiping about me and complaining about those things they might side with her. Of course I have this new employee that has only been here for 30 days that disagrees with her and sees she is the problem.


 

Expert:  socrateaser replied 11 months ago.
I don't have sufficient facts with which to consider your comments. We're into internal politics now, and since I'm not part of your employer's culture, it's impossible for me to respond intelligently.

I think you need to involve HR if you intend to provide this employee with anything more than an informal warning that his/her performance needs improvement. Any suggestion that deviates from this approach is likely to come to a bad end.

If you are concerned that you are being targeted for your own performance, then failing to follow internal procedures re your own subordinates is likely to get you into even more hot water.

Whereas if you are engaging HR for consultation about a subordinate before taking action, then the HR reps will see that you are not a difficult manager, but rather someone who is looking to play by the rules. And, if there's one thing that HR loves -- it's people who follow the rules.

Hope this helps.
Customer: replied 11 months ago.

I agree, you have been very helpful thanks so much. That has always been my rule and I have never had any issues in my 30 year career until now.


 


In California, is it true you must verbally warn someone, then give an employee a written warning before termination? I know CALIFORNIA has extra rules then any other state?


 


 

Expert:  socrateaser replied 11 months ago.
In California, is it true you must verbally warn someone, then give an employee a written warning before termination? I know CALIFORNIA has extra rules then any other state?

A: There is no such rule in the Labor Code. Sectino 2922 provides that an employer may terminate an employee at any time for any reason or for no reason at all (this is the state codifcation of the common law "at will employment doctrine).

HOWEVER, every large employer has a written policy as to how it goes about disciplining and ultimately terminating an employee. Failure to treat employees equally may be used by the employee to prove either unlawful discrimination or a breach of implied contract.

So, the question is: what is your HR department's written policy? Whatever that is, that's what you must do.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 34091
Experience: Retired (mostly)
socrateaser and 2 other California Employment Law Specialists are ready to help you
Customer: replied 11 months ago.

thanks you have been most helpful!

Expert:  socrateaser replied 11 months ago.
You're welcome and good luck!

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