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Hayward Law Blog

Some employees in California and elsewhere – often managerial or other upper-level workers – have lengthy and tailored employment agreements that spell out in detail key elements of their relationship with an employer. Central provisions within such contracts often set forth the terms and conditions that will be legally guiding in the instance of job termination.

Such is not routinely the case for the bulk of America’s workforce. In fact, most employees across the country engage in work pursuant to a so-called “at-will” relationship with management. What that means is that an employer can essentially release a worker at any time and for any reason, without legal repercussions.

Many people are surprised to hear that, and regard an at-will contractual relationship as conferring an absolute one-sided power on an employer.

That might ostensibly seem to be the case, but it is in fact not true. Termination linked with an at-will relationship comes with one key caveat.

And that is this: Job termination must not be for an illegal reason.

Candidly, an employer’s motivation is not always easy to perceive. Some company bosses couch terminations in a pretextual way. For example, they might cite subpar performance, when the real reason for a termination was grounded in aversion to something like a worker’s race, religion or sexual orientation.

Questions or concerns regarding a job termination should be directed to a proven employment law attorney. A lengthy list of federal and state protections exists to safeguard workers from discriminatory workplace behavior. A number of categories are “protected” under relevant laws, meaning that a worker cannot be terminated because he or she fits within one or more of those classifications. In addition to the above-cited classifications, protected categories include sex, ethnic origin, disability, pregnancy and medical conditions.

Experienced legal counsel can provide further information.

Being in an authoritative role is not for everyone. Often, individuals in positions of authority, like employers, have to make difficult decisions when it comes to managing certain operations, addressing issues that arise and handling employee discipline. In some cases, these matters can have an element of confrontation or tension, and the possibility exists that some upset could arise. In particular, when terminating an employee from a position, it is important to take the correct steps.

Any worker can feel disheartened by losing his or her job, but as an employer, if you do not follow certain procedures, an employee could claim that you wrongfully dismissed him or her, or that some other detail of the firing process caused undue difficulties. You certainly do not want an already difficult situation to become even more trying for yourself, the employee or the company.

Is immediate termination the right answer?

In some cases, it may be necessary to immediately terminate an employee and have him or her escorted from the premises. Serious offenses like acting in a violent manner, stealing company property, bringing a weapon to work or other serious violations could present cause for immediate removal of an employee. Of course, when weapons or violence is involved, it is important to take caution.

In the event that an employee does not pose a threat or has not violated company policies in any serious way, immediate termination may not be the only course of action. You could have the ability to meet with the employee and let him or her know about any performance issues or other feedback that could help the worker understand that improvement is necessary. Keep records of this meeting to show that concerns about future employment existed before termination.

What if no improvement occurs?

Some workers do not take feedback seriously and do not want to improve, or they may simply not have the ability to handle a particular job as much as they try. You certainly do not want to keep on an employee who hinders other workers or the business overall, so ending employment may be the best course of action.

The options for terminating an employee can differ. For instance, should you offer severance pay? How much notice should you give the employee before the dismissal? Do you need to take the same actions with each employee in this situation? It is vital that you have the right answers to these concerns and come up with a dismissal process that suits your company’s needs, complies with California state laws and does not cause any unnecessary issues. Fortunately, an experienced employment law attorney can explain available options.

Some legal realms turn out to be surprising for people who underestimate their broad utility.

Estate planning is one prime example.

An in-depth online overview of the subject matter underscores that. It stresses that, “When people think of estate planning, they tend to focus on the distribution of an individual’s assets and other property when he or she passes away.”

Fair enough. Planning certainly does emphasize asset distribution to heirs and beneficiaries. That is a critically important component in legions of planning strategies.

It is also commonly just a single cog in a plan, though. Tailored estate plans also address and effectively manage myriad other concerns as well. Here are some representative examples:

  • Power of attorney designations relevant to financial and health care matters should a planner become incapacitated
  • Trust creation addressing the special needs of a loved one
  • Gifting and charitable strategies that can play a role in lawful tax avoidance
  • Guardianship appointment (with key relevance for parents of young children)
  • Probate avoidance, which can save time, money and sometimes family acrimony, as well as promote privacy
  • Business succession, with determinations often being vitally important for family-run concerns

Many people put off planning owing to a belief that it is relevant only to seniors having considerable assets. The above bullet points belie that assumption.

And some would-be planners procrastinate because they think an executed plan is a done deal not subject to further adjustment.

Happily, that is also untrue. The aforementioned overview duly stresses that estate plans are freely amendable in most cases, “so you needn’t fear being locked into a ‘rough draft’ plan that’s created early on in life.”

An experienced estate planning attorney can provide further information.

Lots.

That might easily serve as a shorthand answer to today’s above-posed blog headline query. Indeed, when it comes to making a selection concerning the type of structure a new commercial enterprise should assume, a business principal has a wide menu of choices.

And it pays – both figuratively and literally – to get it right.

We reference business entity selection on our website at the established Bay Area [nap_names id=”FIRM-NAME-2″]. We stress therein that entrepreneurs’ attention necessarily focuses on both “small details and big-picture planning.”

The combined micro and macro approach to business matters is likely nowhere more on display than with entity choice. How an enterprise will be set up and organized is a fundamental and first-step concern for any owner. Is power sharing contemplated? Will family members be involved? Are tax considerations a top-tier concern? What about liability?

Business structure: multiple formation options to consider

An in-depth online overview of business structures and entity choice underscores the large number and varied types of organizational possibilities that exist. Notwithstanding the sheer variety, that primer points out that business creators often narrow their choices significantly, emphasizing these select models:

  • Sole proprietorship
  • Closely held business
  • Partnership
  • Limited liability company
  • Corporation

Each of those possibilities offer pros and cons that link with a principal’s specific needs. If minimizing personal liability is a major concern, for example, LLC and corporate forms offer distinct advantages over other entity structures. Conversely, individuals highly concerned with preserving autonomy and decision-making powers might want to focus more closely upon a sole proprietorship or other closely run business.

Matters like taxation, raising capital and distributing profits and losses are also centrally important to many business creators.

The bottom line concerning entity formation stresses timeliness and proper due diligence. A proven business law attorney can provide sound and tailored advice that promotes an entrepreneur’s likelihood of success from the outset.

California has unquestionably stood tall as a beacon of hope and new opportunities for vast numbers of Americans for decades.

The state commands the country’s largest and most diverse population. The California economy spotlights a breadth and depth unrivaled virtually anywhere else on earth. Indeed, many estimates posit that California’s business might is on par with that of the world’s most productive nations.

When commercial entrepreneurs, would-be start-up owners and established company principals think of the state’s unique business dynamism, their thoughts often turn to Northern California.

Specifically one broad and richly varied region, which we spotlight on our website at the [nap_names id=”FIRM-NAME-2″]. We stress therein that, “Few places equal the Bay Area when it comes to innovation and entrepreneurial spirit.”

Our firm’s principal attorney has helped business clients kindle that spirit and launch successful enterprises for more than 30 years. The on-point and results-oriented legal guidance and representation we provide to business actors and entities across a broad spectrum comprehensively addresses matters ranging from formation to dissolution and succession planning.

Among other things, we help company principals determine what type of business entity will best promote opportunity and sustained profitability. We closely assist clients in negotiations and with drafting tightly crafted and tailored contracts. We help business principals deal proactively and effectively with wide-ranging labor law concerns. We mediate disputes and, when necessary, help resolve them through forceful litigation.

The bottom line: Our representation promotes clients’ best interests across a virtual universe of commercial challenges and opportunities.

We welcome contacts to the firm and the opportunity to discuss the proven and impassioned work we do on behalf of a valued and diverse clientele.

Quicker. Cheaper. Less stressful. Greater autonomy for involved parties. A focus on civility rather than adversarialism.

With benefits like that to recommend it, why would parties in legal disagreement ever fail to give mediation a timely and measured look as a potential mechanism for resolving conflict?

In fact (and for those very reasons and more), mediation is being increasingly resorted to in California and across the country as a comparatively superior tool to employ when parties are at loggerheads.

And on matters relevant to a broad range of subject matter. We note the broad applicability of mediation on our website at the Bay Area [nap_names id=”FIRM-NAME-2″]. We note therein that the process is relevant in myriad contexts, including these:

  • Business disagreements centered on contracts, employee claims and more
  • Estate planning concerns, addressing matters ranging from probate and will validity/contests to owed fiduciary duties and additional matters
  • Real estate issues (e.g., repair/inspection, contractual disputes, earnest money and construction defects)

The often-realized bottom line for parties opting for mediation to address disputes centrally spotlights its proven utility. We underscore on our website that when an experienced attorney acts as either a neutral mediator or consulting lawyer in the process, mediation can “effectively resolve disagreements without resorting to costly, time-consuming litigation.”

The key word in that above sentence is “experienced.” An individual seeking a mediator’s involvement in a legal matter might reasonably want to consult with an attorney having a demonstrated mediation background and linked success.

We welcome contacts to our firm from persons seeking information concerning mediation and other litigation alternatives for resolving legal conflict.

One critical mistake small business owners often make is failing to keep accurate and current information on their employees. This does not only include their employment applications and forms from the hiring process but also records of any critical interaction you may have with your workers. Your business may have only a few employees, and you may think it is not important to log your conversations, warnings or corrections, but many business owners have regretted taking a casual approach toward documentation.

Certainly, you have files for each employee that contain the documentation the government requires you to keep. You may have your own policies for keeping certain information on each employee. However, you may be overlooking important details that could leave you scrambling if an employee ever decides to take legal action against you.

The benefits of smart record keeping

Too often, employers fail to write down what they say and decide when speaking with employees. Instead, they believe they can rely on their memories if they ever need to recall a certain event or meeting. This is almost always a mistake and is rarely a reliable way to preserve the accuracy of an event. Careful, factual documentation can provide an overview of an employee’s performance that supports any action you may take, including:

  • Promoting those who have proven their worth
  • Offering pay raises fairly
  • Coaching an employee who may be struggling with production
  • Knowing when it is appropriate to take disciplinary measures to the next level
  • Dealing with serious conduct issues, such as sexual harassment
  • Avoiding the appearance of discrimination
  • Terminating an employee with just cause

After meeting with an employee, whether for positive or negative reasons, it is wise to record the main points, any decisions you make with the employee and what your next steps should be. Your documentation may be on a formal template you create or informally, but it should be objective, noting facts and behaviors and not your personal feelings about an employee. For example, instead of saying an employee is unreliable, you might record that the employee missed three important deadlines.

If an employee ever files a wrongful termination claim or another legal action against you, you may be thankful that you have kept careful and consistent documentation. The information you preserved may be helpful in building a strong defense against the accusations. With the guidance of a California attorney, you can develop good techniques for keeping employee records as well as having a skilled advocate when facing employment law claims.

We note a point on our website at the established Bay Area [nap_names id=”FIRM-NAME-2″] that often emerges as prevalent when workers are treated unfairly – often unlawfully – by their employers.

That is passivity, which looms large in many contexts and operates to the clear detriment of affected workers.

On the one hand, such a response is understandable: Legions of employees reasonably enough view themselves as relatively powerless when contrasted to the seemingly unbridled prerogatives of an employer A boss is, well, a boss.

On the other hand, though, workers in California and across the United States should know that they are accorded hard-earned protections under federal, state and local laws against employer overstepping at the workplace. As we prominently note on our website, employee rights can often be aggressively exercised to help affected workers prevail in worker-management disputes.

Like unlawful job loss, for instance. We duly note that no California worker “has to passively accept a wrongful termination.”

A proven employment law attorney often has fertile grounds to examine when probing into the details surrounding a worker’s firing. Cases are spotlighted daily across the country that underscore the pretextual motivations of bad-faith employers seeking to rid themselves of unwanted workers.

Substandard performance might be alleged when, in fact, management simply dislikes an employee based on his or her ethnic origin, sexual orientation, religion, race or other protected classifications. Company executives sometimes wrongfully terminate a worker for his or her labor views and communications with other employees, or when a worker takes the guise of a whistleblower reporting illegal management acts to governmental authorities.

The bottom line: Workers can readily eschew passivity in such instances. Indeed, they command strong legal rights, which often entitle them to receive maximum compensation in response to company wrongdoing.

We welcome contacts to the firm from individuals having questions or concerns regarding wrongful termination or another employment law matter.

Whether you sensed it was in the works or it came out of the blue, termination from your job is seldom an easy event. You may have to dust off your resume and reach out through your network for job opportunities. You may end up depleting your savings, if you are fortunate enough to have one, while you look for work. You may dread the thought of filling out applications and going through job interviews, but you need money to survive.

However, you may see a bright spot in your termination if your employer offers you a severance as part of your separation agreement. When you think of the potential struggles ahead, you may feel tempted to snatch it up and shake the dust from your shoes as you leave. This is not always a good idea.

How much?

Severance may include a sum of money, either in a lump sum or in payments over time, that an employer offers a worker they are letting go. There is no set amount, but a severance typically falls between one and four weeks’ pay for every year you worked for the company. Many factors may determine where you fall on that scale, including:

  • The reason for your termination, for example an employee dismissed because of downsizing may receive more than one fired for not meeting quotas
  • The thoroughness of your boss’ employee records and performance reviews
  • Whether your performance reviews were generally positive
  • The terms of your employment contract

An employer rarely offers a severance without some sacrifice on your part. Your employer may require you to sign an agreement forgoing your right to sue for wrongful termination or discrimination, or restricting you from accepting employment with a competing company. You should consider these factors carefully before signing, since they may have long-term ramifications.

Other benefits to negotiate

Every state has its own laws regarding what an employer may or may not negotiate in a severance package. For example, you may be able to haggle for accrued vacation pay or unused sick leave. You may have a right to seek a letter of recommendation or even help with your job search. Although your employer must offer you continued insurance coverage at your expense, you may negotiate financial assistance with those payments.

As you can see, there are many items to consider, and others may be unique to your industry or situation. The advice to seek an attorney’s review of your employer’s offer is not a suggestion you should ignore. An attorney can assist you in obtaining the most complete and fair severance your employer can offer.

When your business is involved in a dispute, this can be much more than just a frustration for you. You know this can cost you time and money, and you may be unsure of what you can do to protect the long-term interests of your company. Litigation is a possibility, but there could be other ways you may be able to resolve this dispute in a timely and cost-effective manner.

Mediation could be the right way for you to resolve your business dispute. This is a process that allows two contesting parties to work through disagreements, breaches of contract and other issues in a respectful and productive manner, eliminating the need for further litigation. Often, it leads to resolutions that are beneficial for both parties, which is not always the case in litigation.

Why consider mediation?

There are many reasons why you may want to consider mediation as a way to work through your current business dispute. Not only does this allow you more direct control over the terms of the outcome, but it also shields you from the stress that often comes with an adversarial court process. Other benefits of mediation include:

  • Can communicate directly with the other party.
  • Can choose to work on a remedy that is not a traditional legal remedy.
  • Takes less time to complete the mediation process, saving you money.
  • Allows you the ability to keep the terms of your agreement private
  • Gives you the ability to continue your relationship with the other party

These are only a few of the reasons why you may want to consider this method over others. Before you move forward with litigation, learn more about how this process can benefit your specific situation.

Potential drawbacks

There is no one-size-fits-all approach to mediation. While mediation may make sense in many situations, it is not always the best choice. Some of the potential drawbacks to this situation include the following:

  • Cannot force the other party to participate in the process
  • Not feasible for parties who are unwilling to discuss things or compromise
  • Can take a long time to complete mediation in particularly complex situations
  • May not work if the other party has certain types of company policies in place

Speaking with a California attorney experienced in dispute resolution and business law can help you understand how mediation could be the right choice for you. When the financial and legal interests of your company are on the line, it is worthwhile to explore all legal options before making any final decisions.