The recent legislative session gave rise to a plethora of new laws applicable to employment. One of these laws, SB 497, gives certain employees new rights and presumptions in litigation over termination of their employment.

Even prior to enactment of SB 497, existing law prohibited a person from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant engaged in “protected conduct” under the Labor Code. An employee who was discharged, threatened with discharge, demoted, suspended, retaliated against, subjected to adverse action, or in any other manner discriminated against in the terms and conditions of their employment because, among other things, the employee engaged in “protected conduct” was entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.

AB 497, however, has created a rebuttable presumption in favor of the employee’s claim if an employer engages in any action prohibited by the Labor Code within 90 days of the “protected activity.” This shifts the burden of proof of the reasons for the employer’s actions upon the employer if the termination occurred within 90 days of the” protected activity.” One can easily imagine a poorly performing employee recurrently engaging in “protected activity” to forestall termination of employment.

However, the fun does not stop here. AB 497 established that, in addition to other remedies, an employer is liable for a civil penalty not exceeding $10,000 per employee for each violation of AB 497 to be awarded to the employee who was retaliated against. The Labor Commissioner can assess the penalty, upon consideration of the nature and seriousness of the violation based on the evidence obtained during its investigation.

AB 497 also created a rebuttable presumption in favor of the employee’s claim if an employer prohibits the discussion of wages against the employer and acts against the employee within 90 days of the employee sharing of wage information with others and the employer engages in any action against the employee within 90 days of the protected activity specified in this provision.

One can easily see how an unscrupulous employee is likely to manipulate these provisions to stay employed. If you are an employer, no matter what reason you may have to terminate an employee, contact your attorney before you do so. If you don’t you may be presumed to have wrongfully terminated the employee(s).

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.

It happens all the time: an employee gives two week notice. You’re happy: the employee was a trouble-maker, or was not performing at an acceptable level, was absent too much, and you were struggling to figure out how you would handle the situation.

But there is another step that many employers will take in that situation which can lead to another set of problems. That “other step” is simply to terminate the employee immediately without any severance pay.

Watch out! That can lead to another set of problems.

• The government will no longer treat this as a “voluntary quit,” and instead it will be treated as an involuntary termination without cause. Result: the employee will have continued eligibility for UI.
• The employee may have a valid claim to be paid for the two weeks following your action in terminating the employee.
• Other employees who hear about this may later give you zero notice if they decide to resign themselves. That kind of action could be damaging to your business.

But allowing the employee to stay around for two weeks may also be unacceptable, depending on the particular employee’s position.

What can be done about this dilemma, where either of the two indicated actions is far less than 100% satisfactory?

Usually, the best course of action is to pay the employee for the full period of notice, but tell them that they are not to come into the office during that period of time except if scheduled for some essential action such as picking up their final paycheck.

While that may sound costly, it won’t in fact be costly at all if it avoids other problems that can in the long haul cost you considerably more.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.

Employers can sometimes lawfully fire employees for posting critical comments on social media (Facebook, etc.) about their company, even if limited to discussing only their own jobs, and even if the comments are posted on the employee’s own time and using their own computer system.

But that’s not always the case.

The National Labor Relations Act (NLRA) prohibits employers from penalizing employees acting as a group to try to improve the terms and conditions of their employment. Engaging in what the NLRA calls “protected concerted activity” applies to employees whether or not they are in a union.

In a recent case, the National Labor Relations Board (NLRB) ruled that employees of a sports bar who posted or “liked” Facebook posts that were critical of their boss were unlawfully fired because the posts constituted protected concerted activity. The posts were prompted when several employees discovered that they owed more in income tax than they expected. They discussed it among themselves in the workplace and then brought up the issue with the bar’s owner, who scheduled a staff meeting.

Before the scheduled meeting, an employee started a discussion on her personal Facebook page claiming the employer didn’t know how to prepare tax paperwork properly. Other employees, as well as customers of the bar, participated in the obscenity-laced discussion. The bar owner found out about the discussion and fired one of the employees who had posted in the discussion, saying she wasn’t “loyal enough.” The owner also terminated an employee who had merely “liked” one of the posts.

The NLRB said the posts were protected concerted activity because they involved four current employees and were part of a discussion that had started in the workplace as a complaint about the owners’ tax-withholding calculations. The NLRB ordered the bar to reinstate the employees.

As a common theme we ask readers who employ others to check with your attorney before you terminate an employee for social media conduct.

Three out of four employees access social media every day on personal devices while at work. Fewer than 50% have a social-media policy that applies to employees outside of work. Providing employees with social-media training is becoming increasingly important, but if you decide to embark on this journey of figuring out what “social-media training” is, be sure to first load up on a good dose of common sense!

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.

An employee was reprimanded, based on a disciplinary matter. He was given a Personnel Action Notice, which is a common personnel practice, and was asked to sign it as acknowledgement, and not in any way as an admission of wrongdoing on his part. He refused to sign it, and was fired for insubordination.

In early July, the California Supreme Court came down with an important ruling that is likely to influence the actions you when terminating an employee.

The Supreme Court decided unanimously that the employee’s refusal to sign a Personal Action Notice was not “misconduct” sufficient to disqualify him for UI eligibility purposes. As a result, it was initially decided that he was terminated for “misconduct.” This also made him ineligible for unemployment insurance payments.

Our recommendation, should you encounter a similar situation: following the employee’s refusal to sign, put a note in the file, noting that he/she refused to sign, but do not discharge solely on the basis that “refusal to sign” was equivalent to insubordination. Our best advice to our business owners, when in doubt, call your counsel to discuss.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.

California is an “at will” state, so you can terminate an employee at any time, for any reason or for no reason at all … right?

Wrong.

You can’t terminate someone for illegal reasons, for example, because of their race, gender, and about 15 other behaviors or characteristics which are not lawful grounds for termination.

But how does a court know your real reason for terminating an employee?

One of your managers can shoot his/her mouth off, as in the case we describe below, but there are plenty of other ways. For instance, suppose you ordinarily list the reason for termination and eligibility for rehire in the employee’s file. And then, with no other explanation to be found, you fail to include that information for one particular employee who is terminated, or enter clearly sham or unprovable info in the file. Departure from established practices at your firm might well constitute evidence of illegal discrimination.

As one employer discovered the hard way, firing a long-term employee with a history of positive performance reviews is an excellent way to get sued for age discrimination, wrongful termination and retaliation – especially if the decision to fire the employee is based on poorly documented performance issues.

Although a lower court ruled that the termination was nondiscriminatory, a court of appeal overturned the lower court’s decision because the employer could not quantify either the number of or the potential seriousness of the employee’s alleged mistakes or identify “anything like a quantitative standard to which plaintiff’s performance might be compared.” Cheal v. El Camino Hosp.

Carol Cheal worked in El Camino Hospital’s Nutrition Services Department as a Dietetic Technician (Diet Tech) from August 1987 until her discharge in October 2008 at age 61. She was responsible for preparing menus for patient meals, while adhering to hospital procedures intended to ensure that the correct foods reached the correct patients.

Up to and including her performance evaluation in August 2007, Cheal had always received the highest rating on her performance evaluations. In July 2007, the hospital hired Kim Bandelier to supervise all employees on the clinical side of nutritional services. This included Cheal, who was the oldest employee under Bandelier. By January 2008, Bandelier accused Cheal of numerous shortcomings impacting patient care.

On April 14, 2008, Bandelier gave Cheal a written warning for failure to conform to a hospital patient identification procedure. On June 3, Bandelier issued a second, “final” warning for failing to comply with the same procedure. On Monday, September 8, 2008, Bandelier accused Cheal of incorrectly preparing one or more patient menus.

On September 25, 2008, a hospital manager told Cheal that she was no longer considered competent to perform her duties as a Diet Tech, and that she could either take another position in the nutrition services department, accept a severance package or be discharged. About a week later, Cheal told the hospital that any further communication should go through her attorney.

The hospital terminated Cheal on October 10, 2008.

Cheal sued for age discrimination, wrongful termination and retaliation. The hospital asked the court to dismiss the case because Cheal failed to present any material facts to support her case. The hospital was able to prove Cheal made several mistakes between January and May 2008; thus, according to the lower court, termination was appropriate and nondiscriminatory. The trial court found that Cheal was unable to show competent performance and dismissed the case.

Cheal appealed, and a court of appeals took a closer look at the evidence presented.

Much of the hospital’s evidence suggested that the errors attributed to Cheal were unacceptably grave because they implicated patient safety. Yet, there was no effort on the part of the hospital to analyze the seriousness of the mistakes or how her performance errors compared to errors made by other employees. The appellate court found no attempt by the hospital to quantify either the number or potential seriousness of mistakes committed by other persons performing duties similar to Cheal’s, or to otherwise identify anything like a quantitative standard to which Cheal’s performance might be compared.

The only performance benchmark put forth by the hospital was a performance evaluation form, which suggests that errors of the type attributed to Cheal would be acceptable at a rate of “less than one per day.” The hospital presented no evidence that Cheal committed errors with anything approaching a daily or even weekly frequency. Using the hospital’s own performance benchmark, there was no support for the trial court’s finding that “several mistakes on menus” over a period of four or five months supports a
finding of unsatisfactory performance.

The hospital also presented evidence that Bandelier identified 19 distinct areas or incidents of unsatisfactory performance, 16 of which Bandelier labeled “coachings” of Cheal’s unsatisfactory performance. Cheal presented evidence that Bandelier’s assertions were not accurate: Bandelier’s notes were inconsistent with her statements; and the “coachings” were merely updates of information provided to all staff.

Cheal also provided evidence that Bandelier “hunted down” Cheal’s errors on her own initiative, while leaving the errors of younger workers to be discovered and reported, if at all, by others. Cheal did concede to one error she made while she worked for Bandelier.

To make matters worse, Cheal presented a declaration from Bandelier’s friend, who stated: “One evening when I was at Ms. Bandelier’s house for dinner, she said to me, ‘We shouldn’t have lunch anymore or talk socially at work … People are starting
to notice I’m favoring the younger and pregnant ones.’” (ellipsis in original, italics added).

The appellate court concluded that since Cheal had a long history of satisfactory performance, a jury could find that Bandelier’s list of supposed deficiencies had more to do with Bandelier’s attitude toward Cheal than with Cheal’s actual performance. Cheal presented ample evidence that her performance was satisfactory, including the hospital’s own policies indicating that, at worst, she committed far fewer errors than might be anticipated, and deemed acceptable, in another person performing her duties.

The court held that the hospital cannot simply articulate a legitimate reason for terminating Cheal as a defense against a discrimination lawsuit. The hospital must be able to show that Cheal’s allegations cannot support her claim of discrimination.

• Training supervisors on properly completing employee evaluations and performance reviews.
• Ensuring employee counseling sessions are properly documented and include a witness to verbal conversations so accurate records are maintained.
• If a new supervisor suddenly finds significant errors with a high performing long-term employee, you may need to look into it. Is there a health issue affecting the employee’s performance? Is the supervisor exhibiting a bias against the employee?
• Make sure your supervisors and managers understand your policies and train them to implement the policies consistently.

It’s a tricky area to deal with. Unless your firm is large enough to warrant hiring a full-time trained and qualified human resources manager, consulting counsel is recommended before terminating a long-term employee.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.