Considerations for Employment Termination

CEN Blog ImageNavigate California’s at-will employment landscape, ensuring professionalism and legality in employee termination. Nikki Mahmoudi and Tomiwa Aina of Weintraub Tobin’s Labor and Employment Group discuss the complexities on this installment of California Employment News.

Watch this episode on the Weintraub YouTube channel


Show Notes:

Hi, everyone. Thank you for joining us for this installment of the “California Employment News,” an informative video and podcast resource offered by the Labor and Employment Group here at Weintraub Tobin. My name is Nikki Mahmoudi, and I’m an associate in the group. I’m joined today by Tomiwa Aina, another associate in the group. If you were able to join us at our March seminar, you’ll recall that we discussed general considerations to keep in mind with employee terminations. Today, Tomiwa and I are going to expand on that. As we discussed in our CEN episode on employee discipline, an employee’s termination should not come as a surprise. The key really is documentation. You want to make sure you’re documenting performance and attendance problems, performance evaluations and counseling, documenting behavioral problems, documenting policy violations, disciplinary actions, as well as inquiries and investigations into misconduct and/or policy violations. That way, if you need to terminate an employee, it’s not something completely out of the blue for them. With that said, when it comes to terminating employees, some general things you want to keep in mind. The default rule in California is an employer or employee may terminate the employee relationship at any time with or without cause and with or without notice.

We call this at will. You have at-will employment in California. Before terminating an employee, you want to be able to articulate and, better yet, document the legitimate business reason for the termination, even if your employee is at will. Having a legitimate, non-discriminatory, or retaliatory reason for the termination is really the focus of any termination. The reason must be unrelated to the employee’s protected class or protected activity. So, when I’m talking about discrimination and retaliation, discrimination is when employment decisions are not based on skills, qualifications, and ability but rather on protected characteristics. That’s going to include race, color, national origin, religion, sex, gender, age, etc, stuff like that. With retaliation, what happens is you have a protected activity. Let’s say an employee spoke out about or opposed what reasonably appeared to be an unlawful activity, and then you have an adverse employment action. What happens is after engaging in that protected activity, the employee suffered some adverse employment action. There’s going to be a causal connection between that protected activity and the adverse employee action. Oftentimes, it’s a closeness in time. Again, the thing is when you have to terminate an employee, you want to be able to articulate that legitimate business’s decision that’s not discriminatory and not retaliatory.

Tomi, are there any other general tips you have for terminating employees?

Yes. Thanks, Nikki. In the case where you have actually planned to terminate an employee, there are certain things you want to keep in mind. First, you should prepare your recommendation as to the appropriate course of action for that employee. You want to also review all your supporting documentation to ensure their accuracy and that they are complete. Next, make sure you take a look at your action plan and review all supporting documents with the other decision-makers in your company. For example, if you need to consult with legal, your in-house counsel, or human resources. Also, before terminating the employee, there are certain questions you want to ask yourself, and a couple of them include: will the termination violate any public policy? Is there an outstanding or settled worker’s compensation claim subjecting the employer to a retaliation action? Because the closest in time with those claims and the termination is definitely prevalent in any retaliation decision. Next, you also want to ask, will the termination of the employee prevent the vesting of any benefits? Also, did the employee’s protected status arguably have anything to do with the decision, or will it appear that recent employment decisions are adversely affecting a protected class? Next, you should also consider whether or not it’s appropriate to terminate the employee or just suspend them pending further investigation. You want to take a look at whether or not your actions are consistent with prior incidents of a similar nature, especially as it relates to employees in the same protected class. Nikki, can you tell us a little bit about considerations for the termination meeting with the employee?

When it comes to the actual time you want to terminate an employee, remember it’s not an easy conversation for you to have. It’s not easy for you; it’s not easy for the employee. But you want to handle it in as humane a manner as possible. Some things to keep in mind are: one, is that interview going to be conducted in private? It’s not something you’d probably want to have in the staff, let’s say, lunch area where others can be. It’s something that, to the extent you can, you want to have in a private space. Another thing to keep in mind is, are you prepared to be calm and factual? Again, this is something where it can be emotional, but to the extent you can, you want it to be you’re in a calm state; you can present the facts that need to be presented. Another thing is, should a witness be present? Would it be helpful to have a supervisor there, someone in HR there? Really, I think the general consideration to keep in mind is you want to handle the conversation with professionalism and respect. Be straightforward about the reason for termination. Explain to an employee that their services are no longer needed in a respectful and professional manner, and make sure to listen to those employees’ concerns and answer any questions they have.

Tomi, are there any recommendations you have on common mistakes for employers to avoid?

Sure. Thanks, Nikki. So, one thing to keep in mind is that you don’t want to allow your documentation to create a false sense of impression of sudden deterioration in performance after many years of acceptable performance. And you also want to avoid squirreling away complaints and not addressing them until perhaps when you’re thinking, “Okay, maybe I should terminate this employee?” So make sure you’re addressing complaints or performance issues in a timely and appropriate manner, and that will also get you in the good habit of having proper documentation. Also, you want to make sure you have good evaluations for the poor performance of the employee if performance is a reason that you’re terminating the employee. And lastly, you should also avoid playing the doctor and making judgments about an employee’s medical condition. For example, if they say they can’t work for some reason, you should accept your doctor’s note and not try to pass judgment on the actual medical conditions of that employee. Well, that is it for now. You can continue to find our video series and podcast through the or on Weintraub Tobin’s YouTube channel. Thank you very much, everyone, for joining us today, and we look forward to reconnecting with you on our next edition of “California Employment News.”