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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12789
Experience:  Significant experience in all areas of employment law.
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I need to terminate an employee. She has been counseled many

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I need to terminate an employee. She has been counseled many times for behavior and attitude issues. I've given her a lot of space and consideration since she is a single mom in the past 6 almost 7 years.

She is now on maternity leave and I told her before she left that for the benefit of my company financially, I was going to have to change the hours of this position. I have determined that the position is now only maybe 6 hours a week. I have someone who is temporarily doing her complete job in that time frame. More efficiently.

I don't want to create a problem and possibly be sued. I don't really want her to come back because I have discovered so many mistakes and other problems. Can you please tell me what I am supposed to do and how to do it legally.
Hello and thank you for entrusting me to assist you. My name is XXXXX XXXXX I will do everything I can to answer your question.

By "maternity leave" do you mean pregnancy disability leave? Or has she already had her child? Can you also please tell me how many total employees you have?

Lastly, can you please tell me whether you have any documentation of her behavior and attitude issues?

I very much look forward to helping you on this matter.
Customer: replied 3 years ago.

She has had her baby. It is about 3 weeks now. I have two total employees including her in my office (not inclusive of me).


I have some documentation, but mostly these have been conversations about complaints from clients, complaints about her not remembering what I asked her to do. I had to tell her about 2 months before she left that she couldn't continue to bring her daughter to work as we are not a child care facility and she misunderstood and thought that I meant that when she had the new baby too.


I provide supervised visitation monitoring and the complaints about her daughter there while parents have to be supervised had escalated in the months prior to her leaving. She continued to bring her daughter.


she seemed to comprehend the discussions about her attitude and like I said, it would seem alright for a couple of weeks and then slip back. It became more prominently a problem just prior to her leaving. Little to no work getting accomplished as well. (I guess that is called baby brain).

Thank you for your reply.

As a company with only 2 employees, you may be surprised to learn that there is NO law which requires you to provide pregnancy leave or maternity leave of any kind. California does have something called the Prengancy Disability Leave Law, which requires covered employers to provide up to 4 months of protected job leave to pregnant employees disabled by their condition and unable to work.

However, the "PDLL" applies only to employers with 5 employees or more. Moreover, if this employee is no longer "disabled' by her pregnancy, no law would protect her job if you had 5 employees even if PDLL did apply. The only law which provides for true "maternity leave," wherein an employee gets to spend time after birth to bond with her baby, is the Family Medical Leave Act, which applies only to employers with 50 or more employees. In that case, the employee is entitled to up to 12 weeks of unpaid leave for bonding time.

Even if any or all of these laws applied, which they do not, no law provides absolute job protection--simply protection from retaliation for being away from work--and so an employee can still be terminated for poor performance even if she is on or has recently taken pregnancy or maternity leave of some kind.

Of course, when an employee does fall within the protections of pregnancy/maternity leave laws, the employer will want documentation of the performance issues for which the employee is being fired so as to rebut allegations of unlawful pregnancy leave retaliation.

Here, it seems like you would have ways of proving the basis for your decision, but again these laws simply do not apply and so this is not even necessary.

Absent the application of any pregnancy leave law or a contract which otherwise guarantees this individual's employment for a set period of time, her employment is by default "at will" and as such can be terminated at any time for virtually any reason.

Ordinarily speaking, it would be best to terminate this employee by providing them with written notice and an explanation that the decision is for performance related reasons. Labor Code 201 will also require that you pay her final wages immediately at the time of letting her go.

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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes and kindest regards.
Customer: replied 3 years ago.

thank you, XXXXX XXXXX Now it is how to be tactful. I appreciate the answer so much!

It's always preferable if you can end things on somewhat good terms, so tact is good idea. 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.

Best wishes moving forward!
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