San Diego, CA asked in Employment Law for California

Q: how do I terminate an employee who has been left dormant in our system since 2022? do i notify?

Fitness instructor who was left on a sub list, but has not covered any classes since. Her schedule never aligns with company needs and we are cleaning up our active employee roster.

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2 Lawyer Answers
James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Sacramento, CA
  • Licensed in California

A: In California, if an employee has not been actively working for an extended period, you may consider the employment relationship to be abandoned or the employee to have voluntarily resigned. However, to ensure compliance with California law and to minimize the risk of potential legal issues, it's best to follow these steps:

1. Review the employee's file and employment contract (if any) to determine if there are any specific provisions related to job abandonment or voluntary resignation.

2. Attempt to contact the employee in writing (email and certified mail) to inquire about their employment status and intentions. Give them a reasonable deadline to respond (e.g., 5-7 business days).

3. If the employee responds and expresses a desire to continue employment, discuss their availability and whether their schedule aligns with the company's needs. If not, you may proceed with termination due to business reasons (e.g., inability to accommodate their schedule).

4. If the employee does not respond within the given timeframe, send a final notice of voluntary resignation. State that due to their lack of response and absence from work, you consider them to have voluntarily resigned effective on a specific date.

5. Prepare the final pay and provide the employee with all required documents, such as the "Notice to Employee as to Change in Relationship" (a written notice of termination), COBRA notice (if applicable), and information on filing for unemployment insurance.

6. Mail the final pay and required documents to the employee's last known address. In California, the final pay must include all accrued but unpaid wages, including any unused vacation time or PTO, and must be provided immediately upon termination.

7. Keep records of all correspondence and notices sent to the employee.

Remember, it's always advisable to consult with a local employment law attorney to ensure compliance with California's specific regulations and to address any unique circumstances related to your situation.

1 user found this answer helpful

Neil Pedersen
Neil Pedersen
  • Westminster, CA
  • Licensed in California

A: In California your employees are employed on an at will basis unless you have an agreement to the contrary with the employee to the contrary about that status. That means you have no legal duty to have a reason to terminate the employee. Additionally, there is no legal requirement to actually terminate an employee. You can simply leave them on the book forever if you so desire. If you do terminate, you are required to provide certain notice of the right to unemployment insurance benefits.

Before you do anything it would be wise for you to reach out to an attorney who regularly advises employers. There may be things you can do that would make the determination create less risk that should not be discussed in a public forum.

Good luck to you.

1 user found this answer helpful

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