Employment Law Articles | Fremont, Hayward, San Leandro, Milpitas

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Steps to Defend a Claim When an Employee Sues

Owning and operating a successful business is challenging in the current economic environment. No business owner wants to face a lawsuit—especially a legal claim from one of their own employees. If your company is facing a complaint from an employee, it is imperative that you know what to do to protect the best interests of the business. Here, our Fremont employment law attorney for employers highlights five key steps to take to protect yourself and your business against an employee claim.

1. Understand the Nature and Scope of the Claim

First and foremost, it is crucial that you take the time to understand the nature and scope of the claim. Did the employee actually file a lawsuit or did they initiate a claim with state or federal regulators? In employment law cases, many claims go through a regulatory agency before any lawsuit is filed. You may be facing a claim with the:

California Labor Commissioner’s office
California Department of Fair Employment and Housing (DFEH)
United States Department of Labor (DOL)
Equal Employment Opportunity Commission (EEOC)

2. Do Not Take It Personally, Do Not Punish the Employee

As challenging as it can be, it is important to remember that employment law claims are not personal. These complaints should be handled in a professional manner. If the employee still works for your company, do not take any adverse action against them—even if you believe that they filed a false claim in bad faith. You do not want to expose your company to liability for retaliation. The EEOC notes that retaliation is the most common basis for employment claims nationwide.

3. Identify and Preserve Relevant Documents and Record

Employers can effectively protect their interests by identifying, gathering, and organizing all documents and records that may be relevant to the claim. Not only do employers have a general obligation to save information once a claim has been filed, but these records can form evidence to help protect your business against liability.

4. Notify Your Insurance Carrier (If Applicable)

Does your company have employment practices liability insurance or another type of related insurance coverage? If so, it is crucial that you notify your insurer once a claim has been filed. In general, insurance policies require that businesses/organizations provide timely notice of a legal claim. Failure to tell your insurance carrier that a claim has been filed could undermine your coverage.

5. Consult With an Employment Attorney for Employers

Employment law is complicated. There are many specialized rules and regulations in place under both federal and state law. Employers facing a lawsuit (or formal claim) from a current or former employee can benefit from consulting with an experienced employment law attorney. A lawyer will be able to review the specific circumstances of the case and help you determine the best course of action—whether that is building a strong defense or working towards a solution in mediation.

Schedule a Confidential Consultation with a California Employment Lawyer

Lynette Ariathurai is an experienced employment law attorney for employers. If you have questions about defending an employee claim, attorney Ariathurai can help. Contact us now for a confidential consultation. We represent employers in Fremont, Newark, Hayward, East Bay, Milpitas, Union City, San Leandro, Gilroy, San Jose, and Santa Clara.

employee claim, employment law attorney, employment liability

Should Attorneys Speak for Employers During Employee Disputes?

To be successful, businesses and organizations need strong relationships with their employees. A legal dispute with an employee can cause serious headaches for a business owner or manager. Even worse, it could put the company or organization at a liability risk. A lawyer with experience representing employers can help your business navigate a conflict.

This raises an important question: Should an attorney speak on behalf of an employer during a dispute? The answer depends on the circumstances — though it is always important to consult with a lawyer as early in a dispute as possible. Here, our California employment law attorney for employers explains what you can expect from your lawyer during a dispute with an employee.

Preventing Claims through Proactive Guidance

It is important to emphasize that a dispute with an employee is not the same thing as an employment law claim. An attorney can help your business take proactive measures to prevent employee claims. This starts with putting the right practices and structure into place. By doing so, your business can go a long way towards reducing the risk of a dispute. Even if a dispute has already arisen, it may be possible to resolve the matter before a formal claim is filed.

If your Bay Area business is already locked in a dispute with an employee, a lawyer can help you take the appropriate action to resolve it. What exactly this entails depends on the specific situation, including the ultimate objectives of your business. In some cases, the best path forward is to take time to understand the employee’s concerns and look for a mutually workable, low-conflict solution that avoids a claim with the Labor Commissioner, Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH).

Defending Employment Law Claims

Not all employee claims are preventable. Even if your company does everything right, there is still a risk that you could face legal action from a current or former employee. Our experienced California employment law attorney for employers can defend your business or organization in an employee claim.

Once a formal claim is filed with the Labor Commissioner, EEOC, DFEH, or any other agency, it is best to let your employment law attorney speak on behalf of your business. It is still possible that the matter could still be resolved outside of court. Nonetheless, it is best practice to work with an employment lawyer for employers who can ensure that the rights and interests of your business are protected.

Get Help from an Employment Lawyer for Employers in California

Attorney Lynette Ariathurai is an experienced, results-driven employment lawyer for employers. If you have any questions about defending your business or organization against an employment dispute, we are more than ready to help.

Contact us now for a strictly confidential initial consultation. We represent employers throughout the Greater Bay Area, including in Fremont, near Newark, Hayward, East Bay, Milpitas, Union City, San Leandro, Gilroy, San Jose, and Santa Clara.

attorney for employers, business attorney, employee dispute, employment attorney, employment lawyer

Best Practices for Navigating Changing COVID Laws for Businesses

The COVID-19 pandemic continues to affect communities around the world. According to data from the California Department of Public Health, there have been more than 4.1 million cases of the virus confirmed in the state as of mid-August of 2021—and with the Delta variant, case rates are rising once again. For businesses, navigating the ever-changing regulatory environment during the pandemic is challenging. Here, our Fremont, CA business lawyer highlights some of the best practices for companies looking to navigate COVID-19 regulations in the Bay Area.

Do Your Research (Local Law Matters)

You need to stay up-to-date on all applicable laws. Indeed, the only truly effective way for businesses to navigate the changing COVID-19 legal landscape is to work with an experienced business lawyer or do frequent independent research into the relevant rules and regulations. Notably, it is imperative that business owners refer not just to federal and state guidelines, but also to local rules and ordinances.

In California, the regulations sometimes vary from city to city or county to county. Here is an example: On August 2nd, 2021, Cal/OSHA released new guidance on masks. Under the statewide public health regulations, facial coverings are required in certain places, such as healthcare settings. For vaccinated people, masks are only “recommended” in most indoor workplace settings. However, some local governments have different requirements. For example, on August 3rd, 2021, the Alameda County Health Care Services Agency reinstated a full indoor mask mandate—regardless of vaccination status. Make sure you know the rules in your area.

Implement a Process for COVID-19 Planning/Rapid Decision-Making

As the COVID-19 outbreak is still a developing public health crisis, it is crucial that businesses in the Bay Area build and implement a process for pandemic planning and rapid decision making. Keep in mind that things can change quickly. Several factors are subject to change, including masking rules, vaccine regulations, social distancing guidelines, and capacity restrictions. A well-developed plan can make navigating the pandemic far easier. Among other things, your business should have:

A plan designed to meet your unique needs/industry
A proactive mindset, always ready to address changing rules
A clear chain of command to ensure swift and decisive decisions when necessary

Be Ready to Seek Professional Guidance on COVID Regulations

Owning and operating a business is difficult enough during normal times. With the COVID-19 pandemic posing a wide range of challenges on businesses in the Bay Area, it has become even more complicated. You should not hesitate to consult with an experienced California business lawyer who can help you and your partners manage the pandemic.

Schedule a Confidential Consultation with a Bay Area Business Lawyer

Attorney Lynnette Ariathurai is a skilled, solutions-focused advocate for business owners. If you have any questions about the best practices for navigating changing COVID-19 laws, our law firm can help. Contact us today for a strictly confidential consultation. From our Fremont law office, we represent businesses throughout the Bay Area, including in Hayward, Union City, Castro Valley, Milpitas, and Newark.

business attorney, California COVID laws, COVID laws, COVID regulations, COVID-19

Preparing Your Business for Bringing Employees Back to the Office in California

According to the California Department of Public Health (CDPH), more than 20 million state residents were fully vaccinated as of July 1st, 2021. With vaccinations rising and COVID-19 cases dropping, more and more employers are getting ready to bring their remote staff back into the office. It is a complicated thing to do—sorting everything out requires careful planning. Here, our Fremont, CA employment law attorney for employers highlights some of the key things to know about preparing your California business to bring employees back to the office.

Follow State and Federal Public Health Guidelines

As a starting point, business owners and managers should keep up with changing federal, state, and local public health & safety guidelines. For example, the Centers for Disease Control and Prevention (CDC) has provided a considerable amount of guidance for employers and employees. As an employer preparing to bring workers back into the office, you need to be ready to answer some key questions, such as:

Will you ask employees to show proof of vaccination status?
Will there be any masking or social distancing policies in place?
Do employees have the option to remain on a full or partial flex schedule?
What steps will you take if an employee tests positive for COVID-19?

Know the Unique Needs of Your Workplace

Every workplace is different. It is crucial that business owners consider the unique needs of their company. Among other things, this means taking proactive steps to adapt the physical workspace for the return of employees. In California, companies are using a wide range of strategies to prepare for the return of remote workers. Some companies are putting an emphasis on ventilation and sanitization. Other businesses are opting to reopen at partial capacity—allowing some employees to continue work remotely either full-time or part-time.

Getting Legal Advice on COVID-19 Laws

Before you bring your employees back to the office, you should seek legal advice concerning the current COVID-19 federal, state, county and city laws that apply to your business. Some questions you may have are:

What protocols must I follow at the workplace for my industry?
Can I require employees to be vaccinated before returning?
Can I terminate an employee who refuses to come back to the office?
Am I required to reasonably accommodate an employee and allow some employees to work from home and require others to work at the office?

The answer to each of those questions may depend on what industry you are in and what city, county, and state that your business resides in. The laws are complicated and continually changing, but you can rely on us for timely, accurate counsel.

Effective, Open Communication with Employees is Key

As employers in California bring their staff back to the workplace, it is important to develop clear, well-articulated policies. Open communication between businesses and employees can go a long way towards reducing conflicts. Employers may also benefit from adopting a more flexible approach that allows for a gradual return to the workplace for many workers. Of course, consistency and clarity are important. At the same time, that does not mean that every employee is dealing with the same issues. There may be some circumstances in which companies are required to make accommodations under the Americans with Disabilities Act (ADA) or other state/federal labor regulations.

Get Help from a Business Law Attorney in Fremont, California

Attorney Lynette Ariathurai is an experienced employment law attorney for employers. If you have any questions or concerns about preparing your California company for bringing workers back to the office, our law firm can help.

Contact us now to arrange a confidential appointment with an attorney. From our Fremont law office, our law firm represents employers throughout the region, including in the San Francisco Bay area and Silicon Valley.

Bringing employees back to the office in california, COVID-19, employment law, labor laws, labor regulations, public health, vaccination status, workplace health and safety

Medical Leave Rules for California Businesses

Recent changes to medical leave rules in California mean that business owners need to learn about their new responsibilities under the law in order to avoid claims and ensure their compliance with state law. Employers in California should specifically know about new medical leave rules that provide California workers with more rights than they currently have under the federal Family and Medical Leave Act (FMLA), which took effect on January 1, 2021, as well as requirements for COVID-19 sick pay that took effect on March 29, 2021.

Expansion of California’s Family and Medical Leave Law

Since January 1, 2021, California employers who have five or more employees must comply with an expanded version of California’s family and medical leave law by allowing employees to take protected leave to care for themselves and for sick family members. The changes to the law arose out of the COVID-19 pandemic, as legislators realized that many parents were unable to be home to provide care for sick children, or for children who needed to learn remotely due to the pandemic’s closure of schools and day care centers. While some people can work remotely, not all jobs come with the possibility of remote work or a work-from-home situation. Accordingly, due to the pandemic, legislators considered how parents who cannot do their jobs from home would need additional protections to take leave from their jobs—both to provide care for their children, and to care for themselves if they become ill with COVID-19.

The new law expands the California Family Rights Act (CFRA), which previously required employers to provide up to 12 weeks of job-protected, unpaid leave for employees who had been working for the employer for at least 12 months and had accumulated at least 1,250 hours of work in that 12-month period. Those requirements have not changed. What has changed is that the law used to apply to employers with 50 or more employees within 75 miles of the worksite, like the federal FMLA. Now, the law applies to employers with 5 or more employees. To be clear, employers with 5 or more employees now must provide job-protected, unpaid leave for up to 12 weeks if they meet the other requirements. In addition, employers must continue to pay the employee’s health insurance coverage under the same terms as if the employee were not on leave.

In some cases, these employees also may be eligible for pay during a medical leave because of another recently passed law.

Expansion of Supplemental Paid Sick Leave Due to COVID-19

In addition to expanding the CFRA to smaller employers, California lawmakers also passed a new law that will require employers to provide supplemental paid sick leave to employees who have been affected by COVID-19. The new law, Senate Bill 95, took effect on March 29, 2021.

This new law expands the employers (and thus their employees) who are covered: both public and private employers in California with more than 25 employees must provide up to 80 hours of COVID-19 paid sick leave, which is in addition to paid sick leave policies that are already in effect through the Healthy Workplaces, Healthy Families Act of 2014. The law also expands the reasons for seeking this paid sick leave, including the need to provide parental care due to school or daycare closures. In addition, employers need to know that this law applies retroactively to January 1, 2021.

Seek Advice from a California Business Law Attorney

The trend in California appears to be moving toward more paid leaves and the expansion of employers who must comply with medical leave policies. For smaller companies, these kinds of expansions can be extremely difficult since they often require employers of very small businesses to hold jobs open for an employee on leave and pay both the employee on leave and the person who steps in to do their job during the leave period. Then, once the leave period ends, the business can be required to provide unemployment compensation to the employee who was terminated to reinstate the employee who was on leave. In short, recently changed California laws have not taken into consideration the financial burden they may be placing on small businesses across the state.

If you have questions about your obligations as an employer under the new leave laws, Attorney Lynnette Ariathurai can assist you. Contact us to learn more about the services we provide for employers in California.

California, cfra, empoyer rules, fmla, medical leave

How Proposition 22 Affects Independent Contractors in California

On November 4, 2020, California voters passed Proposition 22 (“Prop 22”), which CNN describes as a “costly and controversial ballot measure to exempt firms like Uber and Lyft from having to classify their gig workers in the state as employees rather than as independent contractors.” Numerous businesses that will benefit from Prop 22 supported the measure, including Uber, Lyft, DoorDash, Instacart, and Postmates. In total, those companies put $200 million into the ballot measure, according to CNN, making it the “costliest ballot measure in California’s history.”

What do California business owners need to know about Prop 22 and how it will affect independent contractors in California?

What is Prop 22?

Prop 22 was known more formally as the App-Based Drivers as Contractors and Labor Policies Initiative, and it was designed to allow companies operating in the gig economy to avoid the “ABC test” in California. The ABC test, also known as Assembly Bill 5 (AB-5), took effect on January 1, 2020. That recent law, as you may know, makes it more difficult for a gig economy company to classify a worker as an independent contractor as opposed to an employee.

According to the California Labor & Workforce Development Agency, an employer must treat a worker as an employee (and not as an independent contractor) unless the employer can satisfy prongs A, B, and C of the test. The ABC test meant that many Uber and Lyft drivers, for example, would need to be treated as employees as opposed to independent contractors.

With the passage of Prop 22, both ride-hail (i.e., Uber. Lyft) and delivery drivers can be exempt from the ABC test requirements in order to be classified as independent contractors. Prop 22 does provide some employee-like protections to gig economy drivers who will be classified as independent contractors, such as a minimum wage guarantee., overtime pay, access to workers’ compensation, union rights, family and sick leave, or employer related benefits.

Can My Independent Contractors Remain in this Classification?

Businesses that have independent contractors and that operate through an app platform should consult with an attorney about whether their independent contractors can remain independent contractors in light of the new law. Many businesses still have independent contractors and do not currently comply with AB-5. Under AB-5, most of those independent contractors should be classified as employees.

Prop 22, voted in by Californians, shows hope for the gig economy. Many people like to operate businesses for themselves and to use independent contractors to provide services in California. Gig economy business owners, as well as other business owners in California, will need to wait and see if the legislature makes changes to AB-5 in light of Prop 22.

Contact a California Business Law Attorney

Do you have questions about how Prop 22 will affect the classification of your business’s employees or independent contractors? An experienced California business law attorney can speak with you today. Attorney Lynnette Ariathurai has been serving the Northern California business community for years and can provide you with the information you need. Our firm serves clients in Fremont, Hayward, Union City, Milpitas, and Newark.

gig workers, independent contractors, prop 22

Avoiding Wrongful Termination Lawsuits

In the course of running a business, an employer can face many kinds of complaints from employees. As stressful and frustrating as this can be, you can go a long way towards reducing your liability risk with proper preparation. Among other things, you should be prepared for employee complaints and the possibility of wrongful termination allegations. Here, our California employer defense attorney highlights four steps that businesses and organizations can take to help avoid wrongful termination lawsuits, thereby saving the time, stress, and money associated with litigation.

Create Clear Grounds for Discipline and a Termination Policy

Your business or organization should have a clear policy in place regarding discipline and removal of employees. The termination policy should be clearly communicated to workers. Simply defined, a termination policy should set grounds for “discipline up to and including termination”. You should also get the termination policy down in writing. Although even a well-crafted termination policy cannot prevent every claim, an effective policy will help you avoid facing legal liability.

Set Expectations for Employees and Conduct Annual Performance Reviews

Every employee should understand what is expected from them in the workplace. Beyond ensuring that workers know what they need to do, it is imperative that your company conducts regular performance reviews. For most companies, an annual performance review is sufficient. To be clear, California law does not require annual performance appraisals.

Nonetheless, reviews are an excellent tool for employers because they can help the employee understand the workplace expectations and what they need to do to improve. Further, a performance review can serve as a form of documentary proof of an employee’s lacking performance and disciplinary issues should termination be necessary.

Caveat: Employers should beware of the fact that a performance review could potentially be used against them in a wrongful termination claim. If an employee has a history of glowing, positive reviews and is suddenly terminated, there may be a dispute.

Follow California’s Supervisor Training Requirements

Under California law, employers with 5 or more employees must provide 1 hour of sexual harassment and abusive conduct prevention training to nonsupervisory employees and 2 hours of sexual harassment and abusive conduct prevention training to supervisors and managers once every two years. The California Department of Fair Employment and Housing provides the required training free on their website. As a business owner, it is crucial that you make sure that all supervisors and all employees meet the state’s training requirements.

Follow State and Federal Employment Laws

Finally, employers should have a strong understanding of the federal and state laws designed to protect workers. This includes everything from the laws barring discrimination to laws protecting employees from unfair wage and hour law practices. Most federal and state employment laws also prohibit retaliation from an employer when the employee exercises their rights under the law.

Contact a Fremont, CA Business Law Attorney for Immediate Help

Attorney Lynette Ariathurai is a skilled, experienced advocate for clients. Our law firm will help you develop effective methods for responding to wrongful termination claims and defending against these claims in court.

If you have any questions about avoiding wrongful termination lawsuits, we are more than ready to help. Contact us today for a strictly confidential initial consultation. We represent employers in Fremont, CA and near Newark, Hayward, East Bay, Milpitas, Union City, San Leandro, Gilroy, San Jose, and Santa Clara.

disputes, employees, running a business

Can California Employers Still Have Mandatory Arbitration Agreements with Employees?

Business owners and employers in Fremont and throughout Northern California should know that they may not be permitted to require employees to agree to arbitration clauses or agreement under particular circumstances, according to a new law in the state. The new law, Assembly Bill 51, limits the ways an employer can use an arbitration clause. In brief, you may not be able to require new employees to sign employment contracts that contain arbitration clauses. We want to provide you with more information about the new law, which was supposed to take effect in early 2020, and to explain what its implications might be for California businesses.

Understanding California Assembly Bill 51

California Governor Newsom signed Assembly Bill 51 into law in October 2019, to commence in January 2020. The law is designed to prohibit employment discrimination, and one aspect of the bill is that it prohibits employers from requiring job applicants or current employees, as a condition of their employment, to enter into arbitration agreements. The legislative reasoning behind this part of the bill was that arbitration agreements can unnecessarily silence employees and can prevent them from making concerns about sexual harassment at work, public.

Under the new law, it is unlawful (and actually criminal) for an employer to require a job applicant or an employee to agree to an arbitration under the California Fair Employment and Housing Act (FEHA) or the California Labor Code, as a condition of that person’s employment. The law does not invalidate currently existing arbitration agreements. Yet business advocates have filed a lawsuit to prevent the new law from taking effect, arguing that the Federal Arbitration Act (FAA) preempts AB 51. The U.S. District Court for the Eastern District of California recently issued a preliminary injunction that prevents California from enforcing the terms of AB 51. Until the case is ultimately decided, what should your business do?

Impact of AB 51 on Businesses in California

For many businesses in California, arbitration—including mandatory arbitration—can help to keep business costs down and can prevent costly business litigation in the event of an employment or other contract dispute. As such, it is in the interest of many small businesses in Northern California that the law be preempted by the FAA.

In the meantime, what should you, as a business owner in the Fremont area, do to ensure that you are in compliance with existing law? Most importantly, you should know that any arbitration agreement that existed prior to January 1, 2020—when AB 51 was supposed to take effect—does not fall under the new law at all. Even if it were to take effect, arbitration agreements in force prior to this date will remain lawful. Next, you should keep in mind that AB 51 only applies to claims under the FEHA or the California Labor Code. Accordingly, it is certainly lawful to require employees to agree to arbitration for disputes that would not arise under either of these laws.

If you want to require an employee or prospective employee to agree to arbitration for claims that could potentially be covered by AB 51, it is important to recognize that you are taking a risk as a business. If AB 51 is ultimately determined to be lawful and not preempted by the FAA, then any arbitration agreements you make after January 1, 2020 could result in both civil and criminal penalties. However, if AB 51 ultimately cannot take effect, an arbitration agreement that would otherwise be prohibited by AB 51 could be enforceable in California. If you have questions about your business’ situation, you should speak with a business lawyer as soon as possible.

Contact a Fremont, CA Business Law Attorney

If you have questions or concerns about how the new limits on arbitration could impact your business, it is important to speak with an experienced Fremont business law attorney as soon as possible. The law will have significant practical considerations for many small business owners, tech companies, and other businesses in the region.

Contact the Law Office of Lynnette Ariathurai online today or call us at 510-794-9290 to learn more about whether California employers can still have mandatory arbitration agreements with employees. We represent business owners across Northern California in Fremont, Hayward, Union City, Milpitas, and Newark.

arbitration clause, assembly bill 51, business law attorney, employment contracts, mandatory arbitration agreements

Hiring Employees vs. Independent Contractors

When you are hiring new people to work for your business, it is essential to have clarification about whether you are hiring employees or independent contractors. The distinction between employees and independent contractors is important for your own business purposes, as well as for the worker. As you may know, employees have certain rights that independent contractors do not have, and accordingly, Bay Area employers have certain obligations to employees that they do not have to independent contractors.

There is a new law in California that clarifies the test an employer should use for determining whether a worker is an employee or independent contractor. You should seek advice from our Fremont area business law attorney to determine what you must do to comply with the law concerning employees and independent contractors.

California’s ABC Test

Assembly Bill 5 (AB 5) took effect on January 1, 2020. The new law replaces the common law test for determining whether a worker is an independent contractor or an employee. Under the new law, you must classify workers as employees—and not as independent contractors—unless your worker meets all the following conditions of the ABC test:

A: The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
B: The person performs the work that is outside the usual course of the hiring entity’s business; and
C: The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

To be clear, your workers will be considered employees unless you can prove, based on the elements of the ABC test above, that they should be classified as independent contractors.

Business Exemptions for the ABC Test

Some businesses are exempt and do not need to take the test. In total, there are seven categories of exemptions. Determining whether your business meets the exemption requirements can be complicated. One important note is that if your business is determined exempt from this ABC test, it would then fall under the previous case law for determining whether a person is an employee or independent contractor. Our firm can help you to determine whether you fall under one of the exemptions and, either way, we may be able to provide advice on restructuring your business if it is possible.

Contact a Fremont Business Law Attorney

When you are hiring new workers for your business, you must have clarification about each worker’s classification. The new “ABC test” in California for determining a worker’s classification as an independent contractor or employee can be confusing, but an experienced business law attorney can help you. Contact the law office of Lynnette Ariathurai online or call our firm at 510-794-9290. We serve businesses throughout Fremont, Newark, Hayward, East Bay, Milpitas, Union City, San Leandro, Gilroy, San Jose, and Santa Clara, CA.

ABC test, business law attorney, California worker classification, hiring contractors, hiring employees

6 Ways to Prevent Wrongful Termination Claims

Sooner or later, every business will have to deal with an employee claiming that they were wrongfully terminated from their job. The reality is that employers usually terminate employees for performance or due to downsizing. Whenever you must make the business decision to terminate an employee, you should be aware that the employee may file a claim or attempt to sue you.

Your company’s termination process, and how it handles employees during the termination process, very often has a direct impact on whether the employee decides to file a wrongful termination claim against your company post termination. Even when you have a clear termination policy and clearly communicate it to employees as they join the company, and follow it as the employee exits the company, a lawsuit may follow.

Here are some best practices to help you avoid wrongful termination litigation

Define work performance objectives.

If you make the decision to terminate an employee, it should not be a great surprise for the employee. Document the employee counseling process – from warning, to reprimand, and to suspension. Communicate the progressive disciplinary measures with expectations for improvement to the employee and document this in his or her employee file. Thus, having a system to identify performance objectives, and comparing an employee’s individual performance against those objectives, and then communicating with the employee whether they meet or don’t meet those criteria, makes the actual termination, for performance reasons, simpler and less shocking to the employee.

Terminate with compassion.

Even if an employee expects to be terminated from employment because of performance failures, they may still be shocked when terminated and react poorly. A termination from employment is a stressful event. Wherever possible use compassion and empathy to deliver the news while remaining firm that despite everyone’s best efforts, a separation from employment may lead the employee to find a better position elsewhere.

Consider liability insurance.

Because employee lawsuits against employers for wrongful termination are common, an employer should consider liability insurance, to help pay for legal fees and any potential claim for damages. Make sure you understand the available insurance options – including what is covered, whether you are permitted to select your own attorney, and whether the claims are paid per claim or per claimant.

Comply with all state and federal employment laws, when applicable.

Most employers do not know all the state and federal employment laws applicable to their businesses. There are several Supreme Court cases and laws implemented during the year. It is best for business owners to see an Employment Law attorney annually to review their policies and procedures (see below Item 5) and to know the laws applicable to their businesses.

Make sure your company follows all the rules associated with employment promulgated by the federal Department of Labor and the State of California’s Labor and Workforce Development Agency. Posting requirements, payment of severance wages, and responding to unemployment insurance inquiries are very important.

Also, before terminating an employee, consulting with an attorney would be best practice. Your Business Attorney will review documentation, then help clients through the termination process to minimize claims.

Employment handbooks.

Writing down your employment policies and procedures as well as distributing copies of the company’s employment policies and procedures to employees is the foundation of providing a defense to a claim for wrongful termination. Employees should be provided with an employment handbook at the start of their employment and required to sign a receipt indicating that they received the handbook and accept the employment policies contained in the employment handbook.

Train your human resources team.

Your human resources personnel should be up to date with all the labor and employment laws in California or wherever else your company maintains employees. Don’t underestimate the power of developing soft skills, like using effective and efficient communications during the onboarding and termination processes.

Develop a termination plan and related employment policies

Avoiding wrongful termination suits and defending against them if they arise are just two realities of employer-employee relationships today. Assure that your company is following all applicable state and federal laws. If you own a small business and seek assistance preparing an employment handbook and related employment policies and procedures, contact Aria Law firm, a Fremont business lawyer for an initial consultation. Counseling clients in Fremont, CA near Newark, Hayward, East Bay, Milpitas, Union City, San Leandro, Gilroy, San Jose, Santa Clara, We look forward to putting our legal experience to work for you.

employee termination, employment handbooks, wrongful termination claims