Are you a California employer whose employee is not doing his or her work? Is your employee always late or calling out sick? Causing problems with other employees? Should you just fire the employee? 

While California is an employment at-will state, meaning that most employees can be fired at any time for any (or no) reason, that does not mean that firing a problem employee is always the best solution. Unless of course, you want to be sued. There are a number of steps that employers can take to avoid being sued, or at least to put them in a stronger position for success if they are sued. Those steps include:

1. Communication. Upon hire, make sure that you talk to your employees and clearly explain your expectations for the job. Employees should be provided with a written job description. If the job changes over time, so should the job description. It is a good idea to periodically review and update written job descriptions. After hire, if an employee is struggling, a manager should talk to the employee and offer assistance. 
2. Documentation. If an employee is not performing as expected you need to write it down. This is extremely important and possibly the most important thing an employer can do to successfully defend against a lawsuit. There are a number of ways to document. If it’s something minor, you may want to send an email to the employee explaining what they are doing wrong and offering suggestions to correct the behavior. If it is something more important then you should sit down with the employee to discuss the issue and offer solutions. After that meeting, you need to document it via a note in the employee’s file or a follow-up email. 
3. Having a Progressive Discipline System Already in Place. All employee handbooks, for employers of all sizes, should have a progressive discipline policy. You will be in a much stronger position if you have, and are already following, a written progressive disciplinary policy. Typically that includes giving employees a verbal warning and a written warning prior to termination. Each step should be documented. There will of course be times when it is not necessary to follow the steps in the policy, and that should also be stated in the policy. For example, if you discover that your employee is stealing from you, then you are justified in terminating immediately. The reason for termination should be documented in the employee’s file and in a termination letter.

It is important to note that there are three exceptions to at-will employment in California. Generally those employees are covered by other laws or agreements that require an employer to show “cause” for an employee’s termination. The exceptions are:

1. Public-sector employees. These employees are usually protected by civil service laws; 
2. Union employees covered by a collective bargaining agreement; and 
3. Employees with written employment contracts.

All employers (at-will or not) should follow the steps listed. If you have documented an employee’s problems and your attempts to help that employee then you stand a much better chance of having any case brought against you dismissed early. A written record is the best evidence you have to show that the termination was legal, justified and for cause..

Employees are terminated for very different and very specific reasons. Our lawyers can advise you on the proper steps to take in your unique situation.

This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps.