Q: Employee Termination
We are a small drywall company in Ventura, CA - under 10 employees. We have had an employee that fell off a ladder and a work comp claim was filed. He was on light duty and now is fully released.
However, we have found that he has been lying about his hours worked and bullying an employee. He has had numerous verbal warnings. What are the risks of terminating him.
He refused to sign the employee handbook upon hire, and the handbook details progressive disciple and the above mentioned bullying and work hours.
Can you please advise out best route to take? A severance with a waiver?
Thank you so much,
A: This question involves analysis of a lot of specific facts and potential issues that cannot be addressed very well in this forum. You should consider consulting an employment lawyer to discuss the matter privately and evaluate your options.
A: You run the risk this employee will file a petition for benefits pursuant to Labor Code 132a, asserting that the only reason he was fired was because he requested workers comp benefits. Sadly, you do not have even one written warning, so his personnel records would show an employee in good standing who gets hurt then shortly thereafter gets fired, with no written warning to correct his behavior. Last time I tried a case similar to this -- the employee filed a claim two days before her probation ended and they terminated her for failure to pass probation, with not one correction or warning in her personnel materials -- the judge ordered the employer to reinstate her and pay all back wages. AND this is NOT covered by your workers comp insurance, so any award would all come out of the owners' pockets.
Then there are the regulations of the Dept. of Fair Employment & Housing punishing acts unfairly discriminating against anyone with a disability.
Consulting both an Employment Law expert and a Workers Comp specialist and getting specific language with which to give written warnings to this employee is your smartest move.
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