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David Coleman
David Coleman, Lawyer
Category: Legal
Satisfied Customers: 1105
Experience:  BEc(SocSci). LLB (Usyd) - 5 years of Work Experience
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Regarding labor law for restaurant termination in CA

Resolved Question:

All,. My son was a waiter for a large California Restaurant Chain. Was there about 8 months. He was told he was an underperformer,.. OK, fair enough,.. but then was just simply never scheduled again, instead of being terminated. Is there protocol that requires a formal termination or can one continue to be ''employed'' but never scheduled for any shifts? Is there legal obligation to document performance and either remedy or formally terminate? If so, can you site any relevant laws/code ? Part of my issue is that the manager who he worked under and who stopped scheduling him continues to reference his prior performance to current employees (whom he knows) even though he has not been there for over 4 months and has done this in a very disparaging and negative manner, even calling into question his ability to perform in other non-related industries.
Thanks, Mike
Submitted: 6 years ago.
Category: Legal
Expert:  David Coleman replied 6 years ago.
Was there any written contract or formal agreement?
Customer: replied 6 years ago.
Hi David,

Thanks for responding. In addition to the normal submission of an employment application and W4's, there was training documentation and compliance packets relating to sexual harrasment, dress codes and product knowledge that were distributed and completed during an orientation period.

Neither I nor my son can say with certainty as to if any of this documentation related to termination procedures. We are in the process of locating the employee handbood to reveiw for any termination verbiage.

Are you aware of any specific labor laws/codes related to restaurant termination obligations on the part of the employing restaurant that may show an obligatory process by law. My son was never advised that he was terminated, either verbally or via mail.

Thank you-
Customer: replied 6 years ago.
David,

Just for clarity, my son was gainfully employed, had submitted a W4, had tax witholdings, and revcieved regular paychecks as per a normal employer/employee relationship.

Thank you-
Mike
Expert:  David Coleman replied 6 years ago.
Dear Sir,

The law of wrongful termination in california revovles around the 'at will' principle which means that the employer or employee are free to terminate the relationship at any time they feel without cause. There are federal laws which prohibit discrimination in employment on the basis of race, gender, national or ethnic origin, religion and diability, it doesn't sound like that applies to this case. I am not aware of any obligation to provide performance reports. I have provided an example of a wrongful termination case which was fought recently in California about an employee who felt she had been terminated wrongfully because she made a complaint to a regulatory authority about the employer. I have also put in the contact details of a specialist in employment law.

Walker v. Los Angeles County MTA. (2005) 35 Cal.4th 15. This wrongful termination case involved an employee of the Los Angeles County MTA who alleged that she was terminated from her position in retaliation for her cooperation with an investigation conducted by the Office of Inspector General. Her lawsuit alleged causes of action for wrongful termination in violation of public policy and a violation of Labor Code section 1102.5. After losing a jury trial, the employee filed a notice of appeal after the trial court denied her motion for a new trial. The appeals court summarily dismissed her appeal on the ground that a trial court ruling on a motion for a new trial is not an appealable order. The California Supreme Court reversed the appeals court decision, and remanded the case back to the trial court for further proceedings.

I hope that this information is useful.

Regards,

XXXXX XXXXX


Johnston Law Firm
33 S. Grand Avenue 25th Floor
Los Angeles, California
Zip Code: 90071(NNN) NNN-NNNN/span>
Customer: replied 6 years ago.
Hello David,
Thank you for your response. Just one last thing before we wrap up. I understand that 'at will' principle and that it is the employer's prerogative to terminate on any grounds that are not discriminatory.
To your knowledge, does the act of termination need to be explicitly communicated to the employee either verbally or via documentation?
Thank you again and this is my last request.
Regards,
Mike
Expert:  David Coleman replied 6 years ago.

Dear Sir,

Having looked into this specific issue, there was a case called Cotran v. Rollins Hudig Hall Int'l, Inc. (1998) 17 Cal.4th 93, 108. where the court says that an employee terminated for misconduct (not non-performance) must be given notice of the misconduct and a chance for the employee to respond. This is the strongest statement of the requirement for notice that I could find.

Regards,

XXXXX XXXXX

David Coleman, Lawyer
Category: Legal
Satisfied Customers: 1105
Experience: BEc(SocSci). LLB (Usyd) - 5 years of Work Experience
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