Business amp People Strategy Consulting Group Free Webinar Series Agenda Common Mistakes Types of Termination Making the Decision to Terminate Final Paychecks amp Notices Penalties Best Practices ID: 636888
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Slide1
Terminating Employees in California
Business & People Strategy Consulting Group Free Webinar SeriesSlide2
Agenda
Common MistakesTypes of Termination
Making the Decision to Terminate
Final Paychecks & Notices
PenaltiesBest PracticesSlide3
Your Presenter
Dr. Carlyle RogersPresident & CEO of Business & People Strategy Consulting Group, LLC
25
+ years’ HR and compliance experience
Expertise in labor & employment lawsDoctor of Jurisprudence (JD; Law)
Doctor of Psychology (
PsyD
)Certified Interviewer & InterrogatorSlide4
Common Mistakes
Failure to properly investigate the facts upon which the termination is based.Not examining prior documentation.Mishandling the termination (i.e., apologizing, providing inaccurate or too much information).
Mishandling internal and external communication of the employee’s departure (defamation).
Employer doesn’t pay employee wages at time of termination.
Employer withholds or deducts from the employee’s final paycheck.Employer miscalculates when to offer severance to reduce risk.
Employer doesn’t seek assistance prior to terminating employees.Slide5
Types of Termination
Involuntary (Employer Decision)At-Will
With/For Cause
Without Cause
Lay-OffVoluntary (Employee Decision)
Resignation
RetirementSlide6
At-Will and Termination
Either party can terminate the employment relationship at any time, with or without cause, and with or without notice.Exceptions
Terminating contrary to public policy
Employment contract
Emphasizing the at-will relationshipOffers of employment
Employee handbook
Separate policy
Avoid using language that could void the at-will relationship.Verbiage and statements reflecting potential job security or permanence.Slide7
Lay-Offs
Requires 60 days notice of layoff or plan closure to affected employees and other required state/local offices
Federal WARN California WARN
100+ FT employees; 6/12 months 75 FT/PT employees; 6/12 months
Plant closing 50/30 Plant closing, layoff or
relo
50/30
Layoff 50-499-33%FT/30 (single site)Layoff 500+Slide8
Remote Employees
In-person terminations not always available or practical.Can be terminated by video conference or phone.
Be sure that payment of final wages is consistent with the state’s law where the employee works.
It is a good practice to let the employee know who will be participating on the call/conference and to be cognizant of time zone differences.Slide9
Making the DecisionSlide10
The Road to Termination for Cause
Employees are often subject to termination due to the following:
Poor hiring decision by the company
Lack of training, resources, & equipment to perform job
Lack of understanding of expectationsInability to perform
Poor decision making
Don’t careSlide11
The Decision to Terminate
Good reasons to terminate employees: Violations of policies, procedures, and practices
Poor performance
Not a fit
Company restructure
Company reductions Objective reasons
Slide12
What to Avoid
Avoid terminating employees based upon:
Emotions
Subjective information Their engagement in protected activities
Protected classes
Retaliation
Limited informationSlide13
Considerations Before Terminating
Is the employee pregnant?Have they recently returned from a leave of absence?Have they made complaints against a manager in the past 6 months?
Have they complained of sexual harassment (or other harassment), discrimination, retaliation, workplace safety issues, etc. in the past 6 months?
Have they been injured on the job?
Is there a pattern of termination in the company or department based upon a protected class?Slide14
Considerations Before Terminating
Is there paperwork to support the events leading to termination?Does the termination make sense?Is it consistent with other employees who have engaged the same behaviors or issues?
Is the reason tied to clearly defined policies, practices, procedures or expectations?
Has the terminating manager (or employee’s manager) been subject to complaints of harassment, discrimination or other issues in the past 6 months by any employee?Slide15
Severance Agreements
Not required by lawGood to use in high risk situations such as:Protected classes
Recent engagement in protected activity
Employment contracts
If used should include General ReleaseProvides additional compensation, benefits, etc. in exchange for agreeing not to sue the employer
Employees 40 and older required terms consistent with ADEA and OWBPA
Provides 21 to 45 days to consider the agreementSlide16
Documentation
Not required by law (except for Notice of Change in Employment Relationship)
Definitely a best practice
Use for:
Verbal & written warningsDemotions, probation & suspension
Termination
Should include only:
Violations/Issues (tie them to written policies when possible)When it occurred, what the issue is, etc.
Expected changes
Timeline for changes
What happens if not accomplished
Objective information only (don’t get creative)Slide17
Documentation: PIP
Performance Improvement PlansSMART Methodology
Assume that the employee doesn’t know how to correct/change
If not accomplished, then confirms that they can’t, don’t want to, or don’t careSlide18
Documentation: Signing
Often employees will refuse to sign the document provided (whether a warning or PIP).
Not signing the document doesn’t diminish its value or validity
If the employee refuses to sign, simply note on the document:
Date & time of the discussion
Parties present
That the employee was provided the document and refused to sign itSlide19
Final Paychecks & NoticesSlide20
Final Paychecks: Timing
Terminations and LayoffsMust be paid on last day of workResignations
72+ hours notice…final check due on last day
Less than 72 hours notice…final check must be provided to employee within 72 hours (date of mailing is considered the date of payment)
It is advisable to use a method which tracks and confirms receipt.Weekends and holidays are considered in the 72 hours deadlineSlide21
Final Paychecks: Wages
Employers must include all of the following in the final paycheck:Pay for all work performed.
All accrued, unused vacation, PTO, and personal/floating time that isn’t attached to a specific date or event.
Commissions
If earned and are able to be calculated on or before the date of termination, must be included in the final check.
Not permissible to delay until next regularly scheduled date.
If not earned and unable to calculate, then must be paid at the time it is.Slide22
Final Paychecks Notes
If the termination is unforeseen and the check can’t be provided on the same day, the employer should consider paying an additional number of days of wages representing he date the paycheck will be ready for the employee.
For employees requesting the final check to be direct deposited, CA Labor Code 213(d) provides that it is permissible if the employee has voluntarily provided written authorization for that specific deposit.
Keep in mind that the rules related to timing of pay still apply.Slide23
Final Paychecks: Prohibitions
Employers may not withhold a final paycheck.It is illegal to withhold a final paycheck due to an employee owing money, not returning company property, and not turning expense reimbursement forms.
Absent a written agreement at the time by the employee, employers may not deduct from the final paycheck for money owed, non-returned company property, etc.
Thought:
Have the employee sign a promissory note for repayment. If during employment, have them pay with a check or other method. If not able to get in place, you may need to seek out repayment in court.Slide24
Required Notices
DE 2320: For Your Benefit: California Programs for the UnemployedChange of Status Notice
The reason for termination does not have to be included in the document.
Notice of COBRA Rights (20+) or Cal-COBRA (2-19)
Health Insurance Premium Payment Program (HIPP) Notice (applies to employers with 20+ employees who provide health insurance)…DHCS 9061Slide25
PenaltiesSlide26
Penalties
DLSE and DOL claims to collect wages due and penaltiesEEOC and DFEH claims
Civil lawsuit (individual and class)
Wrongful termination
RetaliationSlide27
Penalties
Waiting time penalty…Employee’s daily rate of pay X each day not paid (up to 30 calendar days
).
Liquidated damages
Emotional distress damagesLost wages
Other statutory penalties
Punitive damages
Attorney’s fees…and potential audits from the DLSE and DOLSlide28
Best PracticesSlide29
Best Practices
Decisions should be impartial, objective and fair.Best practice is to tie the decision to an established policy, practice, or standard.
Terminations should be consistently applied.
Documentation, although not necessarily a requirement, is preferred.
Stick to the facts…avoid subjective remarks.Have a process of review.
The terminating manager provides their basis and support for review.
Can help identify retaliation and wrongful termination situations.
Determine if severance agreement should be used.Slide30
Best Practices
When possible, have a member of HR or another manager present as a witness.Be calm and professional…even if the employee get’s angry. Remember that this is often a life-changing event.
Separate the employee from the action…in other words, think “the employee isn’t bad…they just made a bad decision”.
Don’t argue.
Don’t get drawn into challenges or demands.Treat them with respect and dignity.Slide31
QUESTIONSSlide32
Thanks for joining us today!
To download a copy of today’s presentation or to listen to it again, please visit our website at www.bpscllc.com
and check out our Free Webinars tab.
If you need assistance with terminating an employee or have any other HR & compliance needs, please feel free to contact us at:
Email: carlyle@bpscllc.com
Phone: 661-312-7737
Next Webinar:
Overview of Managing Workplace Disabilities in CA
May 13, 2015 at 10:00AM