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We are a private medical office. There are five employee's including myself, My boss would like to terminate two employees who overpaid and due to financial reason he wants to let them go. There is no emoloyee handbook right now. Does the employer have to right to terminate contract with the employee without any legal ratification . We are not invalidation of any State or Federal laws. I guess that the previous manager never provide them with a employee handbook nor there was a cap on the vacation,overtime when so high,etc... Also as an employer are obligated to provide pay salary for military leave?
Thank you for using JustAnswer! Is there a written employment agreement or contract with the individual (targeted) employees?
Yes
And do the written employment agreements say that the employees are "at will"?
No, of the four employees there are only two agreement in the file employee's file and two without.
what are the implication if there is nothing stating that clause on the emploee agreement
Did you receive the follow-up inquiry from the other expert a couple of minutes ago?
no
Okay. There will be another expert coming on to assist you any moment. Hold on just a moment, please.
HiCustomer Thanks for requesting me. When you are talking about employment agreements, do you mean the employment applications that you mentioned in your last question that I answered? The ones everyone was asked to complete? Or do you mean an actual employment contract. Typically, employment contracts are RARE -- so I would think that if there are some on file, they would be between the doctor who owns the practice and other doctors who work there. Nurses, secretaries, and other employees would not have an actual employment contract - they would either have resumes on file or an employment application.
The previous manager created a letter of offer between the employer and employee to the terms of salary and benefits and position. Once employee agree to the terms and sign the agreement. It's not the actual employee application.
Okay. And in that Offer Letter -- is their language at the bottom of the letter that states that, despite the terms set forth in this offer letter, all employees are "employees-at-will" ?? Sorry for the questions, but this does help
No, what it states that :For clarfication and the protection of both you and practice your acceptance of this offer represents the sole agreement between you and practice. No prior promises,representations,and /or understandings relating to his offer are to be considered part of this letter. Our entire offer and understanding are covered in this letter and new hire packet" that's at the end of the letter before the signature.
Hi Again. I suspect that what the employer is going to claim in this situation is that the Offer Letter does not rise to the level of an employment contract and he can terminate any employee at will according to the laws of the state. Because there is no employee-at-will language in the letter, the employee does have the argument that this document is an actual "employment contract", particularly if there was no other letter/contract between the parties afterward. HOWEVER, the employer will claim that this document is nothing more than an offer, and it does not rise to the level of an employment contract because it does not contain a specific beginning date AND a specific end date of the employment. It is not good enough to simply state that the employment runs "when employee wants to leave",etc. There is a provision in the law called the STATUTE of FRAUDS, which requires that ALL contracts which are expected to last longer than a year MUST be in writing and MUST be clear upon the face of the document. The employer really has the better argument in this situation. So, the employer in this situation, rather than "terminate" the employees, he should just lay the employees off so that they can collect unemployment benefits -- and any employee who is discharged should apply for unemployment benefits. Regarding the military leave, the employer does not have to pay that employee while on leave, but does have to keep the job open for the military employee while he has been sent on military duty. It is a nice gesture of the employer to at least try to make up some of the difference between the military pay and the civilian pay and many employers do that very thing. It is tax deductible. IF I HAVE ANSWERED YOUR QUESTIONS PLEASE PRESS ACCEPT. A JUST ANSWER BONUS & FEEDBACK ARE ALWAYS APPRECIATED.
if he lays anyone off, how soon can he rehire someone and what reason does he have to give for the layoff.
For a layoff, he simply has to state that he has a "lack of work" or "Lack of funding" . If he is re-hiring the person he laid off, he can hire tham back at any time, and they would simply stop collecting unemployment benefits and return to work for him (he can offer a reduced salary if he so chooses -- he does not have to hire people back at their old wages and benefits if he does not want to). If he is hiring new workers to replace the ones he laid off, he can also do that at any time. There are no laws against doing this. Again, it all boils down to the employee at will doctrine. We sometimes call it the "employee-at-sufferance" doctrine -- it means that employers can generally do whatever they want to do in hiring employees, offering benefits (benefits can be offered AND cut at the whim of the employer), laying off workers or firing workers. The only thing he cannot do is hire/fire/cut benefits based upon race, sex, disability -- then he would be in violation of US federal anti-discrimination laws. HOWEVER, discrimination claims are so hard to prove that it is extremely hard to get the case beyond the summary judgment stage in a courtroom (summary judgment means that the employer will ask that the case be dismissed because there is not enough evidence for the case to go to trial, and many judges agree and dismiss the case -- it is called summary judgment of a case). 99.9 % of employees in the US are subjected to this kind of employment relationship with their employers. The only workers who generally have some protection against the employes whims in being fired, laid off, benefits cut, etc are organized union workers and people who have genuine employment contracts (usually only extremely high paid workers like CEO's have employment contracts -- those contracts are not an "offer" and have a definite beginning and end date -- for 2 years, 4 years or whatever they negotiate -- but there is a definite end point). So, with the bad economy, many employers are hurting badly (they are unable to get business loans, etc), and they are letting people go in large numbers to cut costs. Sometimes the employer is genuinely in dire straits and must do this, but there are also many employers out there who are also using the bad economy to cut costs and payrolls in order to keep more money for themselves -- and they are perfectly within their legal rights to do so. Finally, if your employer is simply cutting some benefits right now, you are NOT alone -- I get questions every day in my practice and on this website asking me "can my employer cut my pay without notice", "can my employer take away my vacation without notice". The botXXXXX XXXXXne is yes, the employer can do it. It really, really stinks, but employers know that at this time, the economy is SO bad that employees just cannot quit because jobs are limited out there right now. I hope that I have answered all of your questions now? If so, please press ACCEPT so that I will receive credit for my work -- A bonus & Feedback are also greatly appreciated. Good Luck.
Now this does apply to California State laws
Yes.
Experience: 13 years experience in general law: RE, Consumer Prot., Family, Wills & Estates, Emplymnt, Crim Law
Thank you