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Marsha411JD, Lawyer
Category: Employment Law
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Experience:  Licensed Attorney with 28 yrs. exp in Employment Law
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I hired an employee as a cashier at a gas station without a

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I hired an employee as a cashier at a gas station without a formal comtract being signed. The emplpoyee was told that there was a one week no pay/training period. Then the employee was hired full time starting 10/7/09. However, due to increasing occurrences of absenteeism, we fired the employee on 10/11/09. Now the employee is asking to be paid for the week of training and to be paid the within 72 hours from 10/11/09. Are the claims by the employee accurate. How do I settle this issue and ensure that the employee does not ask for any further compensation in the future?
Submitted: 5 years ago via RocketLawyer.
Category: Employment Law
Expert:  Marsha411JD replied 5 years ago.
HelloCustomer

Under California labor laws a "learner," or a person who is being trained in an occupation that they have no previous or similar experience in, may be paid less than minimum wage. They must, however, be paid at least 85% of minimum wage for the first 160 hours of employment or the end of their training whichever comes first. The worker cannot waive their right to the payment of wages. Under California Labor Code 201, when an employee is terminated, their wages are due immediately.
Customer: replied 5 years ago.
Can we have the employee sign a letter that says that this paymwnt will be the last payment made and there will be no further payments or claims? And if so, where can I find assistance in drafting such a letter?
Also, is the employee eligible to claim unemployment? If so, then for how long? And if not, then can we include that as a clause in the letter mentioned above which waives the employees right to claim unemployment, demand more payments, or sue the employer in any way?
And for other employees, can we draft a letter in retrospect that pays them for the training period?
Expert:  Marsha411JD replied 5 years ago.
Hello again,

The employee is entitled to payment under the law and therefore cannot waive any rights to that amount. A release signed by the former employee will not protect you from any underpayments, and in the same vein, not signing a release will not get the employee any more money in the future, as long as they fit the definition of a "learner." The former employee can file for unemployment, but if you object and the UI Commission finds that the employee was terminated due to their own fault, chronic absenteeism, then they will likely be denied benefits. If they do prevail at the hearing level, they will receive UI benefits for as long as they qualify which depends on their continued availability for employment and any governmental extensions of unemployment benefits periods. They cannot be forced to waive their right to apply for UI benefits. If I were you, I would just send them a certified letter with their check stating that pursuant to the FLSA and the California Labor Code, you are remitting wages due to them for their work as a learner from XXX-XXXX(include the dates you are paying for and the hours.)
Customer: replied 5 years ago.
In conclusion,I do not have to call the employee in to have them sign any letter or contract for termination? The emplpoyee has never signed a work related document since he/she got hired. so is it necessary now? And if I mail the chck with the letter that you mentioned, then will I be free of any legal issues?

And if I mail the check and the employee receives it in 4 days, then does that count as remitting the payment in a timely manner?

Where can I find help in drafting letters for future employees for employment. warning letters, and termination letter?
Expert:  Marsha411JD replied 5 years ago.
Hello again,

You are correct in stating that she does not have to sign anything for her termination. However, paying her will not necessarily free you from legal issues. What I said was that she can't be forced to waive those issues. If she chooses, she can still report you to the California Department of Industrial Relations for failure to pay her while she was employed and not having her wages ready upon termination. There is nothing you can do at this point to avoid that. If you pay her now though, she may not bother with reporting the late payment etc. No guarantees though. If you feel that this employee will cause more problems if you do not pay her in person right now, then give her a call and give her the choice between picking up her check and having it mailed to her. If she picks it up, you can still include the letter, and just have her sign for her check. As for the future, you can either get assistance through us or go to the California Department of Industrial Relations website and/or the California government website for employment law at: http://www.ca.gov/Employment/LawsAndRegs.html. One additional thing. California is an employment at will state, which means generally that you, as the employer do not have to have a policy of warnings and stepped discipline prior to terminating an employee. You can terminate them for any, or no, reason as long as it is not discriminatory in nature and it doesn't violate an employment contract or company policy. However, as long as you do have a warning system in place, you must follow it to a tee, to avoid a successful legal claim. That is entirely up to you, but important to know.
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17618
Experience: Licensed Attorney with 28 yrs. exp in Employment Law
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