You can’t always fire an employee who badmouths you online.
It’s a common reaction. An employee bad-mouths you and your business on Facebook. So you fire her.
Before the time of social media (and the internet), I was in college. I also worked a job after school where I had a boss who was a strange, quirky person.
I did a good job, but he was not exactly someone I enjoyed being around. I wasn’t the only one: my co-workers and I would laugh about some of his idiosyncrasies on our commute home on the ferry.
I’m pretty sure he overheard one day (or someone else who mutually knew us heard) because when we returned to work the next day, he was pretty upset with us. My co-worker was fired. I wasn’t, but it was clear that I was going to hit a dead-end soon.
So I moved on a little while later. But I always felt bad about it. I am not gossipy by nature, and I upset someone unintentionally. He was weird, but I didn’t mean to hurt his feelings.
Anyway, now I’m a boss and a business owner, and I try to hire people whom I enjoy working with. I would probably see a couple of teenagers making fun of me as annoying. I certainly wouldn’t feel like paying them my hard-earned profits in wages if they were ungrateful for it.
But if an employee is critical of your business online, you have to be careful. You cannot just fire them in certain circumstances. As always, it is situation-dependent. So watch the video below to get an idea of when you have to call a lawyer before sacking a snickering ingrate.
My employee posted on Facebook criticizing my business. Can I fire her?
Not unless you want to be on the losing side of a wrongful termination suit.
Many states, like California, have laws that prevent wrongful termination in violation of public policies.
Free speech and free association online are protected activities by public policy.
Also, the National Labor Relations Act prohibits employers from retaliating against employees for communicating with each other about the terms and conditions of their employment.
These protections extend to online communications as well.
Getting sued over something so petty is expensive.
Instead, why not use those words as constructive criticism to improve your business?
Then advertise it to social media and your workforce. Voila! Good PR and good will with your employees.
Are Christian Religious Beliefs and Practices Dead At Employment?
So I have a heavy topic for you today: Do employers have to accommodate employees who object to serving gay customers based on religious beliefs?
Pretend that you own a bakery. You have an employee who sincerely objects against gay marriage for religious reasons. Your employee refuses to bake a cake for a wedding that will be for a gay couple. Can you fire that employee for refusing to bake the cake? Or must you force the employee to bake the cake? Or must you allow the employee to abstain from baking the cake?
As a practical matter, I think the answer to this question depends in no small part on where you live. A jury in California may think about this in a remarkably different way than a jury in Kentucky.
What is a “reasonable accommodation” for a religious belief is context (and probably culturally) dependent. The recent Abercrombie & Fitch and Hobby Lobby decisions by the U.S. Supreme Court underscore how politically driven religious discrimination decisions can be.
Here’s the law. According to the Equal Employment Opportunity Commission (EEOC), “The law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.”
Protected religious beliefs are not just for people who are part of a recognized, organized religion. Discrimination protection and accommodations also apply to anyone who has “sincerely held religious, ethical or moral beliefs.”
The anti-discrimination laws are meant to broadly protect people who have sincere religious beliefs and practices without requiring them to prove that they belong to a mainstream church.
Religious discrimination claims typically focus on an employer’s requirement to accommodate days or times for worship and modes of dress. For example, employers are more or less required to allow time off for religious holidays, barring extraordinary hardship.
Employees also cannot be forced to participate in employer-sanctioned religious ceremonies. So you can have a Christmas party, but you cannot force employees to celebrate Christmas at the party, for one common example.
Dress codes must accommodate religious dress, prohibitions and hairstyles. For example, Rastafarians must be permitted to keep their dreadlocks. And you cannot prohibit a Jew from wearing a yarmulke.
This is where Abercrombie & Fitch got into trouble recently. They were sued for not allowing female employees to wear head scarfs as that violated their dress policy. In its defense, Abercrombie & Fitch claimed that the head scarf was not stylish and did not compliment their wares, which they had their employees dress in to display. But this is not a good enough reason to prevent an employee from observing a sincere religious belief.
Title VII (and state laws that follow suit) also prevent employers from forcing employees to act in ways that are against their sincere religious, ethical or moral beliefs. So, for example, if it is against a restaurant server’s religion to dance, an employer cannot make her dance as part of her serving duties — even if it is just for a quick Happy Birthday song.
Employers do not have to accommodate religious practices when it causes “undue hardship,” however. The EEOC explains, “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”
So this is where context, culture and a jury would come in. Most accommodations decrease workplace efficiency, so what is reasonable and what is undue hardship?
Let’s returning to our reluctant cake baker. Would it be a hardship for the employer to have a different, non-objecting employee bake the cake? Perhaps it depends on staffing and who is available. Perhaps this employee is the only employee capable of making fondant. Or perhaps there are ten other bakers who could easily do it.
If it is possible for the employer to not require the employee to do something against their sincerely held moral beliefs, it may be better to put a different worker on the task.
If the employer cannot, he may be justified in forcing the employee to comply, on pain of termination.
I am certain that a typical California jury would be unsympathetic to the employee in this situation — although I can conceive of a jury make up in some places in California where this would not be certain. I would also be less certain in Missouri, where feelings about gay marriage are more varied. So this is why I would say that the answer of what is reasonable and required, versus what is “undue hardship” somewhat depends on where you are at in the country.
An even trickier question is whether accommodating the employee’s beliefs results in an actionable discrimination against the customer, creating liability for the employer. If the employee forces the business to get sued for discrimination by a customer, that is surely an undue hardship.
For example, what happens if the objecting baker tells the customer that they refuse to bake the cake? Or worse, what if the employee begins proselytizing to the customer in a way that becomes offensive (or even considered “hate speech”)? Will the customer sue the bakery for the employee’s behavior?
In most situations where an employee creates a liability for the employer, you can expect the employee to get fired legally. For instance, here’s a true story: a big retailer was told by a customer that she did not want a black delivery driver to deliver her purchase. The manager acquiesced and went to send a white delivery driver. But unfortunately, he told both the white and black drivers why he made the change. Both employees refused to go along and complained to HR about the manager’s decision. The manager was fired and the customer’s order cancelled. Because that manager’s decision put the company at risk for a lawsuit by two employees, the firing was justified.
When it comes to what is required to accommodate religious employees, there is no concrete answer for employers. And with the Supreme Court’s decision in Obergefell, there will be a rise in “conscientious objectors” within the wedding industry.
My advice to employers is to try and accommodate your religious employees as much as possible, without putting your business at risk by inviting suits from customers or making it impossible to operate.
Human beings are hard-wired to believe in fairness and justice. Psychological studies show that all but the most psychopathic of people feel a strong feeling of disgust when they witness something “unfair” or “unjust.”
What does that mean? Well, it means you can fire someone for any reason (right or wrong) or no reason at all, so long as it is not an illegal discrimination. For example, you can fire someone because you think their laugh is annoying even if they are good at their job. But you can’t fire someone for Tourette’s Syndrome because you think their tick is annoying because that is a disability discrimination.
This sometimes comes up when one employee accuses another employee of bad behavior. For example, say a woman accuses a man of sexual harassment. The man denies it. At this point, the employer must make sure that the woman is safe and not being forced to endure unwanted harassment and touching.
The employer is not required to determine whether the man is innocent before deciding to fire him. The employer does not need to pretend it is NCIS before taking action to protect the female (and itself).
That means that sometimes an innocent person will get fired. Yes, it’s unfair. That does not make it illegal.
This video explains more.
One employee has accused another of sexual harassment. Is it wrongful termination if I fire the accused employee and the allegations later turn out to be false?
No. In fact, it’s probably safer for you to remove the alleged harasser.
It may seem unfair for you to fire someone without knowing for sure that the allegations are true.
But the employer is not required to find out the truth in an investigation.
Employers are not investigative detectives and shouldn’t try to act like one.
When employment is “at will,” you can terminate an employee for any reason without repercussion, even if allegations are later shown to be false.
But when an employee levels an accusation of sexual harassment and the employer does nothing, then you may become liable for a “hostile work environment” for not protecting the harassed employee.
Rather than expose yourself to such liability, it may be better to terminate the accused employee.
You must use good judgment in these sensitive situations and there is not always one right answer.
Ask us how we can keep you safe from lawsuits with our Employer Protection Package. For a consultation call 800-449-8992 or email us at[email protected].
Many employers in California know that certain employees are entitled to meal and rest breaks. But several years ago, there were multiple large class actions on the question of whether employers must “ensure” or merely “provide” breaks.
In practice, what this question means is that sometimes employees choose to not take their breaks, for whatever reason. Sometimes employees prefer to stay at their desks for lunch, for example. Or they find break time boring and would rather keep working.
In those scenarios, the employees are allowed to take breaks but are choosing not to. In other words, the employers provide them but are not ensuring that they occur.
Is this a violation of California law? Are employer required to pay penalties when their employees do not take breaks? Are employers required to discipline or fire employees who fail to take breaks? Would an employee file a claim with the California Division Of Labor Standards Enforcement (DSLE)?
Unfortunately, the answer is not entirely clear. It is certain that employers must provide breaks. They must not prevent employees from taking breaks either expressly or with work policies that discourage breaks in a practical sense. Employers who do not have a compliant break policy in their handbooks may violate this law, simply by failing to have a policy.
The California Supreme Court has stated that employers are not required to “ensure” breaks. Employers are not required to police employees.
But here’s the rub: the argument is going to come in when employees say that work culture or work loads prevent them from taking breaks. So while employers are not required to police employees, they really should to some degree.
The best way to do this is by establishing a timekeeping system that is manageable, easy and efficient, so it becomes a force of habit and not a chore for your managers and employees. You should also train staff on appropriate break policies and encourage them to take breaks, ensuring that policies in your employee handbook, if you have one, are followed. Supervisors should be trained to encourage staff to take breaks.
These habits will keep your company from getting sued and will make lawsuits defensible if they come. Not only that, but breaks are genuinely good for your workforce’s productivity. You may find that encouraging your staff to get up from their desks to walk around, get water, stretch and socialize actually increases their alertness and camaraderie.
If you need guidance about an employment issue, please contact the employment law attorneys of Bellatrix PC at (800) 449-8992 for a consultation.
While every state in the U.S. recognizes at-will employment, the rules and requirements for employers are not uniform from one jurisdiction to the next. Therefore, California employers must familiarize themselves with employees’ protected legal rights under at-will employment laws specific to California. Failure to carefully comply with these laws can lead to months or years of costly litigation at the expense of the employer when an employee alleges wrongful termination.
Workplace Discrimination and At-Will Employment
At-will employment seems like a simple concept, but looks can be deceiving. This area of employment law is rife with misconceptions and misunderstandings, which, needless to say, can be financially harmful to the employer. In order to minimize your risk of inviting a wrongful termination lawsuit, it is critical to understand the basic mechanics of at-will employment in California.
In theory, employers may terminate at-will employees for any reason. In practice, as noted by the Governor’s Office of Business and Economic Development, “There are exceptions to the at-will rule created by statute, the courts or public policy.” For example, an employer’s rights under at-will employment do not supersede Title VII of the Civil Rights Act of 1964, which famously protects against workplace discrimination – including wrongful termination or demotion – on the basis of sex, race, color, national origin, or religion. Other examples of protected employee classes include:
Employees with disabilities, under the Americans with Disabilities Act (ADA).
Employees aged 40 or older, under the Age Discrimination in Employment Act (ADEA).
Employees who are pregnant, under the Pregnancy Discrimination Act (PDA).
However, it isn’t just the class to which an employee belongs that matters. Employers can also find themselves targeted by wrongful termination lawsuits for taking retaliatory actions (such as termination, demotion, sexual harassment, or verbal harassment) against an employee who:
“Refus[es] to carry out an activity that violates the law.”
“Participat[es] in union activity.”
Becomes a whistleblower or reports a safety violation to OSHA (Occupational Safety and Health Administration).
California Employment Law and Labor Code Violations
In addition to federal acts like the ADA, PDA, and ADEA, California employees are further protected by state laws. For example, FEHA (the Fair Employment and Housing Act) bolsters Title VII of the Civil Rights Act by providing protection against discrimination, harassment, and retaliation (such as termination) based on “race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, medical condition, age, pregnancy, denial of medical and family care leave, or pregnancy disability leave.” To provide another example, the CFRA (California Family Rights Act), which applies to companies with 50 employees or more, protects employees from being terminated for taking leave to attend to an illness or care for a child or family member.
In addition to refraining from workplace discrimination or the other violations described above, employers must also take care to appropriately compensate at-will employees upon termination. In accordance with Cal. Lab. Code § 2922, “An employment, having no specified term, may be terminated at the will of either party on notice to the other.” This is important in the context of Cal. Lab. Code § 2926, which provides that “an employee who is not employed for a specified term [i.e. an at-will employee] and who is dismissed by his employer is entitled to compensation for services rendered up to the time of such dismissal.” Cal. Lab. Code § 2927 further extends this right to compensation to employees who quit.
The employment attorneys of Bellatrix PC are well-versed in the nuances of California’s labor laws and are prepared to represent limited liability companies, partnerships, and corporations. Our knowledgeable legal team brings years of experience to every matter we handle, no matter how minor or complex. We focus our practice on balancing aggressive client advocacy with strict legal compliance so that you can feel confident your financial interests are protected at every stage of the mediation, arbitration, or litigation process. We have represented employers and business owners in numerous cases involving at-will employment disputes, and have a track record of obtaining favorable outcomes for our clients.
If you’re worried about your company’s current employment policies, we can perform a Business Risk Review to strengthen vulnerable areas in your contracts. If an employee has already threatened you with a lawsuit, the time to seek legal representation is now. To set up a confidential case evaluation, call the experienced employment law attorneys of Bellatrix PC right away at (800) 449-8992.
California’s Labor Code recognizes at-will employment, or employment which may be terminated by employee or employer at any time for any reason. Of course, this broad definition of at-will employment is subject to numerous exceptions and restrictions stemming from both state and federal laws – noncompliance with which can lead to a wrongful termination lawsuit. Contrary to what common myths about at-will employment might lead you to believe, there are right (and wrong) ways to fire employees, with which California employers and business owners must familiarize themselves.
Forms and Documents for Terminating Employees in California
As an employer in California, you are not permitted to spontaneously terminate one of your employees. On the contrary, state and federal laws both require you to provide the employee with various notices and documents in advance, as described below.
Under California law, you must provide the following (where applicable):
A 27-page brochure titled “For Your Benefit: California’s Programs for the Unemployed” (DE 2320). This brochure is produced by the Employment Development Department (EDD). The brochure must be supplied on or prior to the date of termination.
A short form titled “Notice to Employee as to Change in Relationship.” This is required by EDD. This form simply notes the date of the termination/layoff.
If you have 20 employees or more, you must provide all (eligible) employees to be terminated with a single-sheet form titled “Notice to Terminating Employees: Health Insurance Premium Payment (HIPP) Program” (DHCS 9061). This form is supplied by the Department of Health Care Services (DHCS).
Under federal law, you must also provide the following (where applicable):
A Certificate of Group Health Plan Coverage, if the employee was covered by a group plan at the time of his or her termination. This is a requirement of the Health Insurance Portability and Accountability Act (HIPPA).
If you have 20 or more employees, you must provide a Consolidated Omnibus Budget Reconciliation Act form (COBRA notice and election form) to (1) any employees covered by a group plan, and (2) the dependents of employees who are covered by a group plan. This form must be provided no later than the day before termination.
Please note that the requirements described above are not exhaustive and do not account for all documentation and notification requirements. Our employment lawyers will sit down with you to review your records and determine precisely which standards you need to follow to mitigate your risk of exposure to fines and litigation.
How to Avoid a Wrongful Termination Lawsuit
Providing mandatory forms and notices is an important part of the termination process. However, proper documentation isn’t the only factor which employers must bear in mind. In order to avoid a workplace discrimination lawsuit, employers must also consider the circumstances of the termination itself.
The freedoms normally afforded by the at-will employment system are heavily restricted by various laws establishing protected classes of employees. Some key pieces of federal and California legislation establishing protected classes include:
Collectively, these acts prohibit discrimination against the following classes of employees (provided other necessary criteria are in place, such as meeting a minimum number of employees):
Employees belonging to minority groups
Employees from foreign countries
Employees over age 40
Employees who practice a religion
Employees who identify as gay, lesbian, or bisexual
Employees who are pregnant, nursing, or have related medical needs
Of course, this does not mean that employers can never terminate the aforementioned employees – simply that employers who do plan to terminate members of protected classes must be extremely careful. The workplace discrimination lawyers of Bellatrix PC defend businesses facing lawsuits related to sex discrimination, race discrimination, and more.
Even in cases where an employee does not belong to a protected class, wrongful termination lawsuits can still arise for other violations, such as terminating an employee:
Because he or she reported illegal activity or a safety violation to a regulatory agency like OSHA or the DLSE. This can lead to a whistleblower lawsuit.
In retaliation for alleging sexual harassment, wage law violations, or other misconduct by the company, coworkers, or upper management.
Based on the results of a drug test which was not authorized by law.
In a way that violates privacy.
In a way that constitutes libel, slander, or defamation.
Regardless of the circumstances at hand, or the class an employee may or may not belong to, all employers should:
Keep detailed and accurate records of policy violations, disciplinary actions, employee misconduct, etc.
Subject all employees to consistent, uniform standards.
At Bellatrix PC, our employment law attorneys bring years of experience and practical knowledge to each and every termination matter we handle on behalf of employers. Whether you need to revise your company’s standing termination policies, wish to make legal preparations in anticipation of a future termination, or have questions about handling large-scale layoffs and reductions in force (RIFs), we are prepared to counsel you with regard to your rights, responsibilities, and legal recourse. We work with corporations, partnerships, and limited liability companies across a broad spectrum of industries.
If you have any questions or concerns about how to terminate an employee in California, the knowledgeable employment attorneys of Bellatrix PC can help. To set up a private consultation, call us today at (800) 449-8992.
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Alicia I. Dearn is the founder of Bellatrix PC, a woman-owned law firm with offices in Missouri and California. Bellatrix PC handles lawsuits and business transactions. We advise in business, employment, real estate, intellectual property, civil litigation, and election law.
The articles published by Bellatrix PC are for informational purposes only and do not constitute legal advice. If you have a legal issue, please get competent advice from a licensed attorney in your jurisdiction. Use of Bellatrix PC's site is subject to our Attorney Advertising Disclaimers.