Termination Checklist California Law Pull the employee's personnel file. Has the employee signed documents acknowledging his at-will status (e.g., employment application, offer letter, receipt of employee handbook, etc.)? Even though the employee is at-will and has acknowledged as much, it's a smart defensive measure to ensure that there is/are valid reason(s) for the termination. Why? Because the litigious employee will claim she is not an at-will employee. She will argue that she may be terminated only for cause. If a court accepts the employee's argument, you need to be prepared to show good cause existed. Identify the reason(s) for the termination. All of them. Is everyone involved in the termination decision in agreement with the grounds for termination? Gather and preserve all documents that support the termination decision (e.g., prior warnings, counseling memos, performance reviews, customer complaints, etc.) Is termination consistent with the way other employees have been treated under similar circumstances in the past? You do not want to give the terminated employee an argument that she is being treated differently than others, so apply and enforce your rules consistently. Is the employee a member of any protected class? In California, under the Fair Employment and Housing Act (FEHA) employers may not discriminate against employees based on their: Ancestry Race/Color Marital status Medical condition National origin Physical disability Mental disability Page 1 of 6
Religion Sex Gender identity Sexual orientation Age (over 40) Pregnancy Veteran status If you checked any of the items above, are you certain that none of the decision-makers is motivated to terminate the employee because of the employee's protected status? (Note: Even if your termination decision is motivated by a legitimate reason, if your decision also is partially motivated by an illegitimate reason, there is potential exposure to the company.) Stated a different way, if the employee claims he was terminated because of his protected status, will you be able to articulate a legitimate reason(s) for the termination that is/are unrelated to the employee's protected status? Has the employee engaged in any protected conduct? For example, did criticism of the employee's conduct or performance start only after the employee raised concerns about discriminatory treatment or other unlawful conditions at work? If so, and if you terminate the employee, she will argue that the termination was retaliatory. In California, employers may not retaliate against an employee because the employee: Participated in or supported union-related activities Filed or made known her intention to file a workers' compensation claim Received a workers' compensation rating, award, or settlement Testified or will testify in another employee's workers' compensation proceeding Engaged in lawful conduct occurring during non-working hours away from the employer's premises Page 2 of 6
Filed a wage claim with the state Labor Commissioner Testified or is about to testify in a wage claim hearing before the state Labor Commissioner, either on behalf of herself or any other person Filed, instituted, or testified in proceedings under the Fair Labor Standards Act (federal wage law) Opposed unlawful practices or filed a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing conducted by the Equal Employment Opportunity Commission (EEOC) or Fair Employment and Housing Commission (FEHC) Opposed any practices forbidden under the Fair Employment Housing Act (FEHA) (see list of protected classes identified above) Disclosed information to a government or law enforcement agency, based on reasonable belief that the information showed a violation of state or federal law (i.e., engaged in "whistleblowing") Exercised her right to take family leave or pregnancy leave Took time off from work due to domestic violence or sexual assault Took time off to obtain any relief to help ensure the health, safety, or welfare of herself or her child Took time off to serve as a juror or to appear as a witness (and gave reasonable notice prior to taking time off) Took time off to perform emergency duty as a volunteer firefighter, reserve peace officer, or emergency rescue personnel Took time off (up to 40 hours per year but no more than 8 hours per month) to participate in activities of a school or licensed child day care facility of her children (and gave reasonable notice prior to taking time off) Page 3 of 6
Took time off to appear in school and attend the class from which her child was suspended, pursuant to a request from the school district (and gave reasonable notice prior to taking time off) Took time off to serve as an election officer on election day Disclosed the amount of her wages Disclosed information about her working conditions Exercised her right to use sick leave to attend to an illness of a child, parent, spouse, or domestic partner Made an oral or written complaint about workplace safety, either to the company or to a governmental agency, based on a good faith belief that working conditions are unsafe Instituted or testified in an proceeding involving the California Occupational Safety and Health Act (Cal/OSHA) Refused to work in conditions violating Cal/OSHA and believed the violation created a real and apparent hazard to herself or other employees Revealed an illiteracy problem (and satisfactorily perform her work) Was arrested (and the arrest does not result in a conviction) Sought information from the Employment Development Department (EDD) regarding his rights under the Unemployment Insurance Code or the Labor Code Cooperated with any investigation undertaken by EDD Testified or is about to testify in any proceeding under the Unemployment Insurance Code or the Labor Code Is subject to a threatened or actual garnishment of wages for any one indebtedness Page 4 of 6
Hired an attorney to represent him in negotiating terms and conditions of employment Engaged in political activities Complained about sexual harassment, either of herself or other employees Filed for bankruptcy Refused to patronize (i.e., purchase something of value from) the company After satisfying yourselves that the termination decision is neither discriminatory nor retaliatory, consider whether there is any company policy that might protect the employee from being fired (e.g., if you intend to fire the employee due to three unscheduled absences but company policy states no firing will occur unless there are four or more unscheduled absences, you should not terminate the employee) If you have a progressive discipline policy, review the policy and confirm it has been followed and documented. (Note: You should not have a progressive discipline policy. Rather, your employee handbook should advise employees that various offenses will result in discipline, up to and including termination, and that the company reserves the right to terminate employees without progressive discipline.) If the termination decision is related to poor performance, have the performance deficiencies been documented? Do the most recent performance reviews support your assertion that the employee's performance is poor? Has the employee recently received a pay increase, bonus, or other incentive award (any of which the employee might use to contradict your assertion that her performance is poor)? Note: If processing this checklist reveals any "red flags" or unusual or questionable circumstances, consult legal counsel. If you want to be certain a termination decision will not come back to haunt the Company, counsel can advise you about the best strategy, including whether it makes sense to offer separation pay in exchange for the employee giving up any claim(s). Even when the termination decision is not motivated by an unlawful reason, if the employee is in a protected class, it may make Page 5 of 6
sense to offer a separation agreement. They are powerful tools. They allow the Company to buy certainty, i.e., peace of mind that the employee will not be heard from again. Page 6 of 6