March 24, 2020

So you are thinking of terminating a problem employee.  This article details what you need to do prior to terminating an employee for cause in order to avoid being sued for wrongful termination.

In California, unless there is a contract to the contrary, employment is terminable at will by either party – employer or employee.  This does not mean, however, that you will never be sued for wrongful termination . There are a number of safeguards you can take to avoid being sued and, in the event you are sued, to provide a strong defense.

● Do not terminate an employee on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status , as this is prohibited by the California Fair Employment and Housing Act (as well as federal law).

● Do not terminate an employee in retaliation for the employee making any type of complaint or claim against you (including a workers’ compensation claim), or for testifying against you on behalf of another employee.

● Do not act on impulse or emotion.

● Do conduct regular performance reviews.  Written performance reviews should be conducted at least annually on all employees.  The reviews should be honest and employees should be required to sign the review forms to indicate they received the reviews.  When there is a problem with an employee, more frequent reviews are a good idea.

● Do document warnings and disciplinary action.  Warnings and other disciplinary action taken toward an employee should be in writing and the employee should be required to sign the document to indicate receipt.  If the employee refuses to sign the document, the supervisor should note on the document that the employee refused to sign.

● Do document all the employee’s performance reviews, evaluations and disciplinary actions.  Employers should maintain in the employee’s personnel file all performance reviews, performance plans, documentation of counseling, warnings or disciplinary action, notes regarding work performance problems and, where applicable, complaints from customers or other people outside the company.  A review of the personnel file should show all the attempts the employer made to try to improve the employee’s performance.

● Do explain the reasons for the termination in the termination notice.  Be sure to give the employee a termination notice which states the precise reasons the employee is being terminated, and obtain the employee’s signature on your file copy of the termination notice.

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.