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When employees must
leave
by Andrew K. Jacobson
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A worker
leaving involuntarily is often a heart-wrenching experience for both employer
and worker. While anyone who has ever been employed can sympathize with the
employee's loss of wages and benefits, the employer is also often troubled. A
smart employer will try to avoid such troubles before even hiring someone.
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Protecting
the Employer Before a Termination Occurs:
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The Employee
Manual
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At-Will
Employment.
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In a
fast-moving economic era, employers can rarely afford to promise someone a
long-term contract. While California law presumes a job is at-will (Cal. Lab.
Code § 2922), it is easy to lose that right. Careless promises that no one
would lose a job except for cause can bind the employer's hands in economic
straits years later. Employers have unwittingly created enforceable contracts
through such concepts as oral contracts, promissory estoppel, and the like.
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Protecting
the Employer.
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An employer
needs to take early steps for self protection. An employer needs to have an
employee manual that sets forth the conditions and expectations of the job. A
new worker should have to sign to acknowledge receipt of the employee manual
when the job begins, as well as a statement acknowledging that following the
provisions of the employee manual is a required part of the job. An explicit
part of that manual should be a written statement that a job is at-will and may
be ended for any cause, or no cause, at all, so long as there is no illegal
reason. Illegal reasons include discrimination on the basis of religion, race,
national origin, age, sex, disability, pregnancy; termination based upon
protesting illegal actions; and the like. This portion of the employee manual
should make clear that this at-will provision can only be modified in writing
by only the President or other top manager.
It is helpful to
sometimes remind workers of the at-will nature of the job. Keep copies of the
reminders as potential evidence. Also, the laws of employer-employee relations
are constantly in flux. When one side gains a victory, the other side usually
finds a way to level out the playing field again. Periodic check-ups by a
professional are as advisable for employee manuals as they are for people.
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Disciplining
Employees
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The employee
manual should make clear that a range of discipline, including termination, is
possible for any offense. While a few years ago many companies instituted plans
of 'progressive' discipline, with the sanction becoming more severe with each
act, some employees have succeeded in convincing courts that the employer
breached an implied promise of progressively disciplining employees, so that an
employee cannot be terminated for a first offense, no matter how serious.
Avoiding progressive discipline policies protects not only the employer, but
potentially other employees.
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Maintaining
a Fair Workplace:
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Constructive
Termination.
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Another way an
employer can protect himself/herself is to maintain a fair workplace. A serious
problem that employers can face without knowing it is constructive termination,
which happens when an employer creates working conditions so intolerable that
the employee is forced to resign involuntarily. While this seems like a good
idea in theory, it usually turns out to be a serious mistake. A worker subject
to such conduct can recover damages if the worker can show that the employer
knew or should have known about the conditions. A grievance process, designed
to air grievances in a fair manner, helps both the employer and worker.
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Next month: what
to do when a worker needs to be terminated.
(Andrew K.
Jacobson is the founder of Bay Oak Law in Oakland, California, and had been
practicing law for entrepreneurial clients since 1990.)
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