California Employment Law

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California Employment Law
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I fired a part time worker (10 hours per week) due to unfocused

poor work performance. He has...
I fired a part time worker (10 hours per week) due to unfocused poor work performance. He has been with me for 3 months. I told him I would let him know after 3 work days if he still had a job. I said, if I fired him I would give him 2 more work days to locate work. I went back on my word to him due to his dazed, unfocused work performance and fired him on 2/29. He called and said he was coughing up blood and was on his way to urgent care. I sent him a termination notice that day.
He sent me an email saying that it is illegal to fire someone due to seeking medical
attention for a serious illness and that I owe him for the 5 days of work, the days I said
I would give him prior to firing him + 2 days. He wants a Total of 5 days (5 hours per day) $500. If not he will take me to Small Claims Court.
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Answered in 13 minutes by:
2/6/2013
Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 13,389
Experience: Significant experience in all areas of employment law.
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Hello and thank you for entrusting me to answer your question. Can you please tell me how many total employees you have at your company?

I very much look forward to assisting you regarding this matter.
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Customer reply replied 4 years ago

I am NOT a company., I am a retired senior citizen. I have 2 gardeners, and ONE assistant that I just fired.

Kim XXXXX

Kim,

Thank you very much for your reply and sorry for the misunderstanding.

Unless you are a company with 15 or more employees, there is no state or federal law that would prohibit you from terminating an employee who is having medical problems, much less an employee who has already demonstrated performance issues.

Absent an employment contract guaranteeing employment for a specified period of time, employment in the state of California is presumed to be "at will." More specifically, California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other." What this means is that an employer is free to terminate employees for any reason whatsoever, even a reason that is entirely unfair, unless the underlying motivation is discriminatory or otherwise in violation of California law.

This is all to say that termination under the circumstances you describe would ordinarily be legal, and you would have no obligation to pay them for the additional two days you had initially promised them they could work since employment can be terminated at any time without advance notice.

Although an employer in your circumstance has no obligation to pay for work that was never completed, an employee is entitled to payment of his or her final wages (those wages already earned by not yet paid) immediately upon termination. (Labor Code 201)

Failure to immediately pay a departing employee's final wages will typically result in the assessment of a penalty in the amount of the employee's daily rate of pay for each day the wages go unpaid up to 30 days. (Labor Code 203)

So for example, if an employee who makes $100 a day is terminated on on the first of the month but not paid his final wages until the 20th, he would be entitled to a $2,000 penalty from his employer in addition to the earned wages.

Accordingy, you would be wise to immediately pay all outstanding wages, assuming you have not yet already done so.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Very best wishes to you.
Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 13,389
Experience: Significant experience in all areas of employment law.
Verified
Patrick, Esq. and 87 other California Employment Law Specialists are ready to help you
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Kim,

More fundamentally, I should note that if the worker you have just let go is an independent contractor and not an "employee" (i.e. you pay them with a 1099 and not a W2), then the requirements of Labor Codes 201 would not even apply.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
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Patrick, Esq.
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