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Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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A California Employee was given a verbal consultation on February

Resolved Question:

A California Employee was given a verbal consultation on February 3, 2012 concerning measured performance, based on contract year 1 quarterly performance. Performance did not improve and on March 02, 2012 the employee was placed on a writted Performance Improvement Plan (PIP), based on February performance (she signed it). Performance still not acceptable, a continuation of the PIP was presented on April 05,2012. A Performance Improvement Plan review is scheduled for May 4, 2012. The performance has not improved and in fact has worsened.

The employee filed a Workers comp claim on February 15, 2012. The employee stopped the workers comp process this week with a note from a private physician that she would not be returning to work until May 15, 2012.

The employee had been placed on work restriction which were honored in addition to extra support to help facilitate her ability to perform.

Can we terminate this employee or do we need to allow the employee to go through whatever private medical address she ultimately decides on? Or, how do we protect our small business from a wrongful termination lawsuit?

Specifically, the employee has pain in her wrists and capotunnel, but would not release her previous medical records to the workers comp provider, thus resulting in a denial of her claim.
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Joseph replied 5 years ago.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

Yes, you can terminate the employee, since as an at-will employee, the employee can be terminated at any time for any reason with or without prior notice, as long as the reason isn't discriminatory or retaliatory.

This stems from the employment at-will doctrine, which is codified in California Labor Code Section 2922, which states:

"An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month."

As long as you aren't terminating the employee in retaliation for the employee filing a workers' compensation claim, the employee would have no basis to file a wrongful termination claim.

Additionally, since you have proof that the employee had a history of performance issues, and her performance was not improving, you would have a very solid defense if the employee were to attempt to file a wrongful termination suit against you.
Joseph and other California Employment Law Specialists are ready to help you