May 29, 2020

Terminations are never easy or completely risk free.  There are definitely mistakes which can be avoided when terminating an employee, however.  Here are ten of the worst mistakes we see employers making:

1. Terminating in the heat of the moment.  As with any major decision, serious thought should go into terminating an employee.  Many aspects must be considered, and proper timing is essential.  Depending on the level of misconduct, it may be necessary to put the employee on a performance improvement plan for a few months to allow an opportunity for change before actually terminating the employee.  It may also be necessary to obtain written statements from witnesses.
2. Terminating an employee who is on disability, pregnancy, or FMLA leave.  This is a sure-fire way to get sued.  Employees who are on any type of statutory leave have a right to be re-instated to the same or a comparable position upon their timely return from leave.
3. Terminating an employee shortly after the employee returns from disability, pregnancy, or FMLA leave.  A termination in this situation could easily be construed as retaliation for taking the medical leave to which the employee was legally entitled.  (The fact that the “temp” may have worked out better, is no excuse.)
4. Terminating an employee in front of the employee’s co-workers (especially if done in a demeaning fashion).  This accomplishes nothing and may make the terminated employee so angry that the employee may explore the idea of taking legal action.  Also, depending on what is said during the termination, the employee could sue for violation of privacy or for defamation (either in addition to, or instead of, suing for wrongful termination).  Making a show of having an employee escorted out of the building by security should also be avoided, for similar reasons.  (Terminating an employee by email or over the phone is also not advisable.)
5. Calling the termination something it’s not (such as a reduction in force, or a reorganization).  Employers often try to soften the blow or avoid confrontation by calling a termination a reduction in force, a reorganization, or an elimination of position due to budget cuts when, in fact, the employee is being terminated due to poor performance.  The problem arises when you hire a replacement for what is essentially the same position (even if the position has been disguised with a different title).  The terminated employee finds out and sues, claiming the termination was for an unlawful reason.  At this point, it is very difficult to say the employee was terminated due to poor performance, since you never said that before.  Changing one’s story looks extremely bad in litigation because at least one of the stories has to be untrue, so your credibility is severely damaged.
6. Terminating an employee who has complained of unlawful harassment within the last six months.  Terminating an employee who has complained of unlawful harassment is always difficult.  Unless the employee has done something objectively horrible and provable (like stealing company property while being videotaped), you should never fire an employee within six months of a complaint of unlawful harassment, whether it is a written or oral complaint.
7. Terminating an employee in retaliation for the employee complaining about something which is illegal or unsafe (or appearing to do so).  This is just blatantly illegal.  Even if the employee was wrong about what the employee thought was illegal or unsafe, it is still illegal to fire the employee in retaliation for making a reasonable, good faith complaint.  If you have a legal reason for terminating a whistleblowing employee, you should wait at least six months and, even then, be extremely careful in how you do it.
8. Terminating an employee while the employee is on active military duty or has just returned from active military duty.  This can violate both the Uniformed Services Employment and Reemployment Rights Act (the USERRA) and the Fair Employment and Housing Act (the FEHA).  Even terminating a military employee months after he/she returns to work can be viewed as discrimination for having taken the military leave.
9. Terminating an employee without providing a reason other than saying it’s “at will.”  While it is true that an employee can be terminated “at will,” meaning for no reason, in California, this is difficult to defend.  There is always a reason, and that reason should be stated in writing.  If you tell an employee the reason for the termination is because the employee is “at will,” the employee (who usually thinks the performance was good), will assume the termination was for an unlawful reason, and may be able to convince a court or jury of this.  When an employee is being terminated because of poor performance, you need to say so.
10. Terminating an employee without witnesses and documentation.  When terminating an employee, you should always have a neutral witness present. You should give the employee a termination letter or detailed termination form which states the reason for the termination, the last date of work, and the list of any company items the employee is required to return.  You must also provide the employee with his/her final paycheck and must pay out the employee’s accrued and unused vacation or PTO time.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.