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John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5615
Experience:  Exclusively practice labor and employment law.
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We are firing a person who has been on workers comp past 3

Customer Question

We are firing a person who has been on workers comp for the past 3 weeks. The termination is not due to the claim, but rather, from her work and existence in the office, how do i terminate this employee correctly?
Submitted: 1 year ago.
Category: Employment Law
Expert:  John replied 1 year ago.

The trick here is that it is not legal to terminate someone because he/she is on or about to go on to workers compensation. I understand you are terminating her because of her work performance, which is legal, but will a judge, jury or even an attorney she tries to retain to sue you quickly understand that? Thus the key is to have sufficient evidence on file to support it was for performance reasons. You'll hopefully have performance reviews, write-ups, counseling etc. on file. You'll likewise, want to send her a detailed letter with her termination that explains exactly what she did wrong and why that is resulting in her termination at this time.

Customer: replied 1 year ago.
She is coming in today to speak with is. What is the best way to phrase it to her?
Expert:  John replied 1 year ago.

Review the particular instances of sub-par performance with her, and/or draft a letter reviewing the same, and go over it with her and explain that for these reasons she is terminated from employment.

Customer: replied 1 year ago.
would it be correct for her to sign a release of claims?
Expert:  John replied 1 year ago.

You'd have to be willing to either have the company release claims against her (i.e., a mutual release) or pay her some money for the release. In other words things of value (consideration) must be given by both sides to make it a valid release agreement. If the company has no arguable claims against her, it would have to be cash consideration. Also, a release cannot by law release her workers comp claim or a future unemployment claim (for when she gets off workers compensation).

Expert:  John replied 1 year ago.

P.S., If you'd like for me to draft a release document that is enforceable under NY law, let me know and I can submit an offer for additional services to you.

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Customer: replied 1 year ago.
Expert:  John replied 1 year ago.

You're welcome. Please leave a positive rating before you exit this chat as it is the only way I get credit for my answers. If you have any questions in the future regarding this matter come back to this thread and I'll be happy to answer. Thanks and good luck with the matter.

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