Legal Question in Employment Law in California
30 DayTermination Notice
We hired an Outside Sales Engineer in 2005. He signed our Employment Agreement, which says that it can be terminated without cause or reason by giving thirty (30) days advance written notice to the other. There is a steep learning curve in our industry so we didn't expect him to make a profit above his break even for about 1 1/2 years. In 2007 & 2008, he did not meet his goals and in fact, cost us money. We had meetings and performance reviews and implemented corrective action steps, but nothing changed. In addition, we gave him monthly reports of where he stood with his profits and his bookings.
We have decided to terminate him. By contract we must give him 30 days notice unless he violated some other rule, but poor performance is not expressly spelled out as being one of them. The other rules are like insubordination, theft, etc. He also has three weeks of vacation due him, and we understand this has to be paid out upon termination. Can we terminate him without following the 30-day notice stating that the reason is poor performance? If we have to retain him for the 30-day notice period, can we require him to take his three weeks of vacation? If we have to retain him & he gets hurt or disabled what is our liability?
1 Answer from Attorneys
Re: 30 DayTermination Notice
If you have really decided that it is in everyone's best interests to terminate him, then I recommend you dismiss him. Make the day you do so the last date he works. However, on that very same day before he leaves, pay him whatever he would have earned during his 30 day notice period and any accrued and unused vacation.
If you do not pay him his 30 days on the basis that he was terminated for cause and he fights this, he MAY be able to get paid this PLUS waiting time penalties (up to 30 work days). It is not worth the risk on your part.
Regardless of whether he is terminated for cause or otherwise, you owe him his vacation.
Best of Luck.
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