Questions Regarding Terminations within first 90 Days

[pscott413]

What is the name of your state?What is the name of your state? California

I have a couple of questions regarding terminating employees within the first 90 days of employment. Recently, we moved to term with an employee who has been with the company for just under 2 months, who works in a management capacity (coming with a lot of experience). The decision was made based on conduct (inappropriate communication, i.e., shaking finger in an employees face, making an employee cry, etc).

The employee is phoning and thretening a law suit for inappropriate termination and violation of labor laws. Also, he is demanding a letter describing the reasons for termination as well as a copy of his employee file.

My questions are as follows:
What are the state standards for terminations under 90 days? What documentation is needed if this were to go to court? What are we obligated to prove if the employee was terminated under 90 days?

Am I obligated to provide a termination letter?

Am I obligated to provide him a copy of his employee file after he has been terminated?

Please help! The employee is calling and harassing me about it and I don't want to make the wrong move!

 

[cbg]

As far as the law is concerned, there is no difference between a termination within the first 90 days and one after the first 90 days.

California is an at-will state. You can terminate any employee, any time, for any reason except one specifically prohibited by law.

Nothing whatsoever in the law prohibits you from firing him for the reasons you describe, whether he has been there one day or twenty years.

Unless you are a public utility, you are not required to provide him with a service letter (letter spelling out the reasons for his termination). California law requires such letters (on request) for employees of public utilities; other employers are authorized to, but not required to, provide such letters. You might want to run this by your attorney, but frankly I don't see any reason why you SHOULDN'T give him the letter he asks for. It might spike his guns; it also might help you with unemployment. Have your attorney review the letter before you send it out.

You ARE required to give him access to his personnel file. You are required to give him, on his request, a copy of any document in that file that he has signed.

http://www.dir.ca.gov/dlse/FAQ_RightToInspectPersonnelFiles.htm

While you have to be careful about it, you can make a lot of problems go away by agreeing to requests like these. A lot of the time the employee is convinced that there's all kinds of information in his file that will "prove" he's been discriminated against. As long as there isn't anything in the file that would prove him right in this belief you can't do yourself any damage by letting him see that he's wrong.

If the facts are as you state and you've told us the whole story, he has no case for wrongful termination and it will never get to court. However, the more documentation you have, the better it will be. Was he warned before he was fired that his behavior was unacceptable? Was he told that continuing such behavior would result in his being terminated? It does NOT make the termination illegal if you don't, but you can more easily defend yourself against the charge if you do.

 

[pscott413]

If the company operates under a "probationary period" clause in their employee handbook which states that for the first 90 days is a probationary period, does this provide for termination without corrective steps??

Follow up questions... would it be adviseable to give him actual photocopies of the file... and would you advise providing the notes from the investigation regarind his behavior?? Or would it be better to just allow him access to it by appointment? I'm unclear about that because he lives in a different city.

His file does not contain any information other than his new hire paperwork and the notes of the investigation regarding his conduct.

He was not given any formal feedback regarding his behavior. The deicison was made based on his experience and his level with the company. It was the feeling that even a reasonible person would know not to talk to someone in that fashion, and especially with his work experience.

Thanks for your thoughts.. They are so helpful!
Any guidance you can provide is great. I was thinking that I would send him a copy of the separation report as opposed to a formal termination letter. The separation report just states his employee information, reason for termination, last day worked, etc.
Thoughts?

 

[cbg]

If the company operates under a "probationary period" clause in their employee handbook which states that for the first 90 days is a probationary period, does this provide for termination without corrective steps?? NOTHING in the law requires you to take corrective steps regardless of how long the employee has worked there. Unless the employee is operating under a contract (not an employee handbook, not a offer letter, not an e-mail from the supervisor, a CONTRACT) you have no legal obligation to provide corrective steps whether he has been there 30 days, 60 days, 90 days, or 32 years. If your handbook is written even halfway compatently, you have a clause in there somewhere which gives you the right to change or amend the policies therein at any time with or without notice.

There is simply nothing magical about 90 days of employment under the law.

would it be adviseable to give him actual photocopies of the file... and would you advise providing the notes from the investigation regarind his behavior?? Or would it be better to just allow him access to it by appointment? If the different city he is in, is within commuting distance, then all you are required to do is provide him with access to the file, and then give him the copies of the documents he signed when he is there, if he still wants them. If, however, you're in San Franciso and he's in Los Angeles, then just make a photocopy of the file and send it. Although technically under the law he is only entitled to a copy of the notes in his file if he signed them, if he views the file by appointment he's going to see them anyway, so you may as well include them. That's what he wants to see, in any case.

I was thinking that I would send him a copy of the separation report as opposed to a formal termination letter. I assume you're not a public utility? That being the case, you're not required to send anything at all, so that should be fine.

 

[pscott413]

Thanks for all your help.
If I could, I'd buy you a coffee!
You are so helpful!