California is an “at-will” state. Section 2922 of the Labor Code says that if you're not hired for a particular length of time, you can quit or be fired at any time, without notice, for any reason or no reason. Simple. Brief. No law degree necessary.
Problem is, the exceptions could fill a book, several books, actually, if you've ever seen the library in a lawyer's office. You can fire someone for no reason, but not for an illegal reason. And there are quite a few “illegal reasons,” including age, race, gender, disability and the like.
It's also illegal to fire someone because they engage in certain protected conduct, such as reporting for jury duty, helping a co-worker with a workers compensation claim, refusing to perform criminal acts or violate safety rules or because they complain about the company's violations of labor laws.
With so many examples (the list goes on), the last thing an employer wants to do is rely on the “at-will” defense if an employee sues for wrongful termination. Yet many employers, when faced with an employee's substandard performance, would rather just say “it's not working out” than take the time to document the performance problem.
Some employers will even make up a reason, like “we're taking the job in a different direction,” thinking it's safer and easier than telling the employee what he or she did wrong. But such shortcuts can be hazardous.
Let's say you have a cashier you want to get rid of. She takes a small item of merchandise one day without paying for it and you fire her. She sues you, saying you fired her because of her age.
Crazy case? Well, it wasn't so crazy to Walgreens when a Texas jury awarded the woman more than $300,000.
The evidence that spoke to them (that's all that counts, in the end) was that she was older than 50 and the store managers were much younger, she took a $1.59 pair of scissors that she said she forgot to pay for and managers sometimes gave away items and were never disciplined for it.
I don't know whether there was real age bias in this case, but firing someone over a pair of cheap scissors does seem a bit harsh. Maybe it was an excuse to fire her because of other performance problems.
When you use an excuse to fire someone, a jury may wonder what you were really thinking. When you can show that you documented bad performance, especially over time, you make it harder for the employee to claim that there was no legitimate reason to be fired.
Of course, there is never a guaranty that you won't get sued, but I always have an easier time defending an employer whose decisions are well documented.
Problem is, the exceptions could fill a book, several books, actually, if you've ever seen the library in a lawyer's office. You can fire someone for no reason, but not for an illegal reason. And there are quite a few “illegal reasons,” including age, race, gender, disability and the like.
It's also illegal to fire someone because they engage in certain protected conduct, such as reporting for jury duty, helping a co-worker with a workers compensation claim, refusing to perform criminal acts or violate safety rules or because they complain about the company's violations of labor laws.
With so many examples (the list goes on), the last thing an employer wants to do is rely on the “at-will” defense if an employee sues for wrongful termination. Yet many employers, when faced with an employee's substandard performance, would rather just say “it's not working out” than take the time to document the performance problem.
Some employers will even make up a reason, like “we're taking the job in a different direction,” thinking it's safer and easier than telling the employee what he or she did wrong. But such shortcuts can be hazardous.
Let's say you have a cashier you want to get rid of. She takes a small item of merchandise one day without paying for it and you fire her. She sues you, saying you fired her because of her age.
Crazy case? Well, it wasn't so crazy to Walgreens when a Texas jury awarded the woman more than $300,000.
The evidence that spoke to them (that's all that counts, in the end) was that she was older than 50 and the store managers were much younger, she took a $1.59 pair of scissors that she said she forgot to pay for and managers sometimes gave away items and were never disciplined for it.
I don't know whether there was real age bias in this case, but firing someone over a pair of cheap scissors does seem a bit harsh. Maybe it was an excuse to fire her because of other performance problems.
When you use an excuse to fire someone, a jury may wonder what you were really thinking. When you can show that you documented bad performance, especially over time, you make it harder for the employee to claim that there was no legitimate reason to be fired.
Of course, there is never a guaranty that you won't get sued, but I always have an easier time defending an employer whose decisions are well documented.