If you terminate an employee, there are certain issues that could arise with the EDD. You may have terminated the employee for a violation of company policy, or for failing to perform the duties of the job he or she was hired to do. It is expected that an employee will perform the duties of the job to the best if his or her ability. This is an implied or explicit agreement between employee and employer. When an employee is fired (terminated) for poor or unsatisfactory performance, there can be questions about whether that employee has the right to UI. The facts about what occurred should always be carefully documented, including times when the employee was engaged in non-work related actions, such as personal phone calls, failing to arrive to work on time, or many days when the employee does not arrive at all, or other acts that would be good cause for an employer to terminate the employee.
If any employee fails to perform their duties at work properly, and engages in any type of willful misconduct, or act of gross negligence, or continues to perform poorly or engage in the same activities after warnings (which must be documented).
Gross negligence is related to an employee who is aware of how the work should be performed and simply fails to do so, repeatedly, resulting in a substantial loss to the employer. When the employee cannot prove any reason why he or she continued to fail to perform the duties correctly, and has no reasonable explanation for these actions, it may be considered gross negligence on the job.
As claims for unlawful termination have increased in recent years, employers must seek to protect themselves against potential claims more than ever. Being proactive to avoid wrongful termination suits is more important than ever, but no procedure will ensure zero percent exposure to liability. The best defense against unemployment claims is an ongoing, proactive approach that includes good personnel policies and procedures which are consistent with California and federal labor laws.
Avoiding a wrongful termination lawsuit begins before you terminate an employee, and errors in the termination process, ranging from job applications to performance reviews, can expose employers to wrongful termination lawsuits. Terminating at-will employees must be based on legitimate, non-discriminatory reasons. Terminations for drug use should be approached with extreme caution as in California it can only be justified in very limited circumstances.
The state and federal Worker Adjustment and Retraining Notification (WARN) Acts require employers to give notice to affected employees within a certain period of time prior to a layoff or plant closing. The failure to give proper notice can result in substantial penalties.
There are many issues that can come into play when an employee is terminated. It is important that you, as a business owner and employer, have all of the issues surrounding your employee and a failure to properly perform work duties, fully documented, as later, these issues could come back to haunt you if you do not have sufficient proof that you attempted to get the matter resolved. If your employee engaged in some act that put others at risk of harm, it could not be more important that you terminate that person. Ensure all of the facts are fully established, and speak with us at our firm, The Law Offices of Cyrus Mor, to ensure you are protected from future claims.
Contact us for more information about terminations and how to avoid legal problems in the future.