Legal Question in Employment Law in California

Hello, and sorry to hear about your employee.

As an attorney who commonly represents employees in such situations, I have to tell you that it would be a bad idea to terminate this lady at this point because it will appear retaliatory and for a good reason. Think about the questions you are going to be asked by the lawyer: if she was such a bad employee, why didn't you terminate her before? Why there is no mention of her poor performance before the medical condition? How come you made the decision to terminate her shortly after she went on disability and before? Although the timing doesn't conclusively establish retaliation, it's a strong evidence which under these circumstances you will have a hard time overcoming. The fact that she didn't provide medical documentation to support her absence (yet) doesn't absolve you from responsibility in this case as she did put you on notice of her condition and you know / have a reason to know that she has that condition.

At this point, the better options are discussing severance with her in a nice way in exchange for a full release of all claims, as this will be much cheaper and less painful for your business than litigating her claims, paying your attorney for every hour and eventually paying out a settlement to her.

Perhaps you can also make sure that you implement some kind of system where you do document problems with employee's performance in the future or even implement recurring reviews for everyone (at least every quarter?).

Thanks,

Arkady Itkin

San Francisco Employment Lawyer

http://www.arkadylaw.com

Delayed, but 'Yes'. What I tell prospective employment litigation clients is:

In general, unless an employee is civil service, in a union or has a written employment contract, they are an 'at will' employee that can be disciplined or fired any time for any reason, other than illegal discrimination under the Discrimination, Civil Rights, or Whistle-blower, or similar statutes. Their goal should be to keep the employer happy.

You can read your side of it to mean, no cause necessary to terminate, but avoid the appearance of retaliation. Documentation of cause for termination protects you in this case as best as can be done. There is always the risk of getting sue, but that's life. You could have fired her on the first complaint. That you waited until she was on leave complicates it, but does not prohibit you from terminating her when she returns.

I tell prospective clients: Just because the employee is on leave does not mean they can�t be terminated. They have no special exemption against lay offs or termination due to business reasons. A company in downsizing can lay off a FMLA leave person, as long as they can show they aren�t targeting �because of the leave�.

In future, feel free to contact me if serious in getting consultation and legal help.