What You Don’t Know About Employment Termination Letters:
Should an employer provide an employee a written letter setting forth the reasons for termination? You are not going to like the answer… It depends.
If an employee signed an employment agreement requiring cause for termination, the employer should detail in writing the provision under the agreement it is relying upon for termination and the reasons, following an investigation in which the employee is presented with the evidence and provided the opportunity to fully respond.
For the vast majority of at-will employees terminated, the decision to terminate is typically made before the final meeting or communication with the employee. California employers must prepare for a termination, by, among other things, preparing the final paycheck and cashing out any earned, accrued and unpaid vacation as all terminated employees are required to be paid on the date of termination, unless agreed to otherwise. In these situations, often times, the employee has not been provided the full opportunity to respond to the employers’ findings/reasons for termination.
Sure, employment is at will, but the at will doctrine is swallowed up by the exceptions to the rule, such as, if the termination occurs, for example, right after an employee complains of sexual harassment. Even though the decision to terminate has nothing whatsoever to do with the employee’s complaint, the timing alone will give the employee a claim for retaliatory termination. If the employee raises the harassment complaint at the termination, even if unknown to the Company, it will be best advised to not terminate, investigate the complaint, and then decide how to proceed.
In addition, even though an employer is not required to give an employee a reason for termination, if employed at will, juries expect that employees are given a reason and that there is preferably something in writing. However, this does not require that the employer provide the employee with a formal written termination letter setting forth the reasons. Often times, employers who have not yet sought legal counsel to evaluate all of the issues are better off insuring there is excellent documentation of all findings of wrong doing, summarize the findings for the file, and review them with the employee in the final meeting orally with another manager present whose sole purpose is to take notes of the meeting. If the termination is completed, the employer should seek counsel prior to providing any further response as to the reasons for termination. For example, if the employee files for unemployment insurance, the employer will be contacted and asked the reasons for termination. Although the unemployment insurance decision is not admissible in civil lawsuits, any written or oral representations will bind the employer.