Episode 212: Wrongful Terminations

Chef

What happens when a famous celebrity terminates an employee for taking time off to care for her sick child? You guessed it, massive lawsuit. Listen as Paul Edwards and Solution Center Specialist Jason Post discuss wrongful termination, and the different types of leave of absences that practice owners and office managers have to handle with their employees. Plus, hear guidance on how to go about them in a legally compliant way

Transcript

Voice Over: You’re about to listen to another episode of What The Hell Just Happened?! Join Paul Edwwards and his guests as they discuss and sometimes even solve some interesting HR problems. 

Paul: And… I’m gonna go off the rails sometimes and talk about whatever I want. 

Jason: Hey, Paul, how are you doing?

Paul: Jason, I’m good. And I want to welcome you because this is the first What the hell just happened in H.R. that I’ve done with you as one of the experts here. For everybody’s benefit, Jason’s on the team. He is a solution center team member in training.. So, you know, like your business, we take different approaches on how we train people to be experts.

Paul: Jason, you’ve been here a while. How long have you been here now?

Jason: A little over 90 days.

Paul: A little over 90 days. So you’re about 90 days in

Jason: True

Paul: Oh, so he still has the new advisor smell on him.

Jason: Yes. I tried to shower. I tried to shower it off.

*Paul Laughs*

Paul: Before you came in? Yeah. You can’t. You can’t get it off of you.

Jason: Well, thanks for having me anyway.

Paul: Yeah. You know, without you having that really super strong law background that, you know, where we may bring in someone who’s got a law degree, you have this experience in another direction, and you’ve been able to show us that you have the ability to learn everything you could do exactly what the lawyers do here just as well. You just need to be exposed and trained into that position.

Jason: Definitely 

Paul:. And so far, I’m here to tell you, we have Amanda here she thinks I’m about to blast you. For our one listener out there, Amanda produces our podcast, and she’s sitting to my left with cat ears on right now. Why not? So, look, I do want to tell you that we have enjoyed you so far.

It’s been fun to watch you grow in the position. OK

Jason: Definitely appreciate it. It’s been fun to be here.

Paul: OK, so now you’re on. What the hell just happened? So you’re in the queue and you’re seeing stuff that comes up. And by the way, everybody, we don’t just point, we don’t take somebody’s problem and talk about somebody’s problem. We take an amalgamation of all the problems and the solutions that we’re providing for our members. And we kind of look at it and say, you know, this question came in from the community or it came in from one of our members,

Jason: Yeah , and we try to look at the trends.

Paul: Yeah, we try to look at the trends and bring stuff to you that we see that’s happening more often, saw some notes on this. This, did this have something to do with a celebrity that who we have nothing to do with

Jason: It’s true we have nothing to do with this particular individual. And to start the topic, I’d like to lead with a joke, OK? Why do rappers carry an umbrella?

Paul: I don’t know why.

Jason: In case of a little Wayne.

Paul: *Paul Laughs* Oooo Lil’ Wayne

Jason: Happens to be who it is  actually, who the article is about.

Paul: Who Lil Wayne?

Jason: It is.

Paul: Oh wow, what did my homeboy do?

Jason: There’s some controversy. Apparently he just terminated the employment for his personal chef.

Paul: OK.

Jason: Because she needed to go and care for her sick child.

Paul: Oh, and he was like, that just isn’t going to work for me.

Jason: But there’s some details obviously that make everything sticky, right? They were the whole team was in Vegas and they were on the return flight home, but it got delayed allegedly because there was smoking in the cabin of the aircraft. No, no. Couldn’t possibly be. And so, again, the situation is supposedly that the chef went to book her own flight home because her son was in the hospital with a head injury.

Jason: Yeah. So she had to get home. And so they said, what are you quitting? You’re just leaving us and she said, no, I’m going to take care of my son. Well, then she was fired over text the next couple of days later. And so now she’s bringing a lawsuit with these allegations, and it’s for at least $500,000 in reparations.

Paul: What’s what’s her complaint?

Jason: Her complaint is wrongful termination.

Paul: wrongful termination. And is she filing it under? And you may not know these details, Jason. Is she filing it under the EEOC? the attorney who represents this this employee, they have to have some statute. They’re looking for something that’s protective of this employee. And they’re pointing at it and saying, you’ve violated this this law.

Jason: Absolutely. 

Paul: This law, this regulation, this public policy.

Jason: Yes. They are citing California’s sick leave policy.

Paul: Oh, oh.

Jason: Always a fun one.

Paul: OK, so this is a California based Lil Wayne is a California based employer. Yeah. And so first things first. Didn’t matter that they were in Vegas, which is not in California when this occurred. 

Jason: Right. 

Paul: OK, all right. OK, interesting. So any any movement on it or is this just been announced?

Jason: This is a recent article just within the last couple of weeks of when we’re recording this.

Paul: So all right. So let me test you in front of everybody. Why do you think this is a problem? I know why it’s a problem. Tell me tell me about this California sick leave problem that I think we might have.

Jason: Well, it seems like they’re trying to, you know, exercise a little bit of their at will is like, “OK, fine, you left us, so get out of here”. But it’s, you know, caring for family members for a medical condition. Things like that is protected. It’s a protected activity under California. Sick leave. So that’s where the stickiness is coming in.

Jason: So this employee trying to exercise their rights, you know, with a protected activity to care for her sick child or injured in this case. And so they’re they’re violating that protected activity. OK, it seems these are the allegations.

Paul: Those are the allegations. All we know is what’s been reported today, which is always kind of superficial. So you brought up two things for me, the protected status underneath that rule. And you brought up at will employment. OK, so for everyone’s benefit, I don’t know if I’ve ever defined this on the program. At Will employment means that you or the employee can end the relationship at any time.

Paul: Neither of you need to give the other notice, a reason, a warning. You don’t have to do anything, you can end something at will as an employer.

Paul: And as an employee. But there’s a couple of caveats. The first caveat is there are no caveats for the employee. So the employee can just leave. They can send some kind of contract and you’ve given them maybe put in some kind of golden handcuffs and a bonus that says you’ve got to stay here for a year. If you don’t stay here for a year, you have to give it back.

Paul: But you really can’t do anything about it as an employer. So as an employee, employees really don’t have a lot of limitations on their will status. They can just not show up and ghost you or whatever. On the other side of that is the employer. And there’s been much ado, you know, where we see these figures in the news or you know, these people who are like, I’m an at will employer, I can do whatever I want to and I exercise my at will employment rights.

Paul: Well, you can except for the exceptions of which there are hundreds and they’re all built into these regulations and laws and public policy. So in California, the sick leave law said this is what an employee can use it for. So they put a lot of things in place there. One of them is that you can’t require a doctor’s note

Jason: Right.

Paul: And they put some, they said you can use it for these things. OK? So they put some uses around it. One of them is to care for a family member or a child. Right. So you have what is it there? Is it five days total that they can.

Jason: It’s either three or five.

Paul: Three or five yeah. We don’t have that in front of us. So they we don’t mean it’s either three or four days. So it’s California. We can’t remember if it’s three or five.

Jason: Just terrible memories, guys.

Paul: Yeah. Yeah. So underneath the California rule, the rule about sick leave, that’s, that’s what this is about. I doubt I doubt that lil Wayne has 50 or more employees or that he meets maybe the family medical the paid family medical thing that goes on in California, which is unique to California as well. So I think this is the only thing that they could reach into.

Paul: The problem that they have here is that somewhere in the statute it basically the way this reads is, is that Lil’ Wayne is possibly being accused of retaliating against her for simply exercising a right that she has underneath the law.

Jason: So right under that protected set.

Paul: Under that protected stuff. So we go all the way back around to the Atwill thing. And I tie these two things together I mean, At will doesn’t protect you. Now, there is this is the caveat. This is one of the many, many hundreds of different caveats where at will employment breaks down. So to you know, I mean, to kind of wrap this up because this is pretty simple so far because we don’t have any more details.

Jason: So really, you know, kind of the question there is can you use sick leave to care for a family member, which, you know, of course, under California law, does, as you said, itemized quite a few things. And even if there’s not necessarily a state or local law regarding it, it’s still pretty common to have it be used to care for a family member.

Jason: Right? Right.

Paul: Yeah, right. So I think it’s interesting, too, because I think part of the problem that the Lil’ Wayne organization may have is those tests that went back and forth either between him and her or representative of him and her where she’s going to be telling him the reason why I’m booking my own flight. And I got to get out of here because I’ve got a child that I’ve got to go take care of, which was a very reasonable thing for her to want to do.

Jason: Yeah, absolutely. So another thing that we’ve seen as well, it’s kind of, you know, bumps up against is is bereavement leave,  And, you know, those are the more unfortunate circumstances of a family member passing away and an employee going to take time, paid time, sometimes unpaid time, sometimes as well, depending on the policy or the state law, things like that.

Jason: But what happens if your policy is a little bit vague and there’s no law that speaks to it? What happens about the bereavement is there a reasonable, good faith application of a policy like that when you’re not sure, you know, maybe the family member is not quite as close as you think it should be.

Paul: So this leads me into where and we’ aren’t going to goo all the way down this rabbit hole, but I think this is a good thing to kind of leave people with when you don’t have a policy or you don’t have a clear policy about something, then you don’t you don’t have the ability to put parameters and limitations around it.

Paul: So when you’re not clear and you write your own policy or you maybe listen to I’ve heard I’ve had payroll companies tell our members over and over and over again who are smaller members like they they you know, they may have three employees or five or eight or nine or ten employees. And they say, well, look, the requirements for you to give maternity leave don’t apply to you.

Paul: So you shouldn’t have a policy around that because we don’t. We don’t want to put a policy in place if you’re not required to do it. Well, the problem with that approach is it’s the same one that you were just talking about with bereavement leave because you weren’t clear about it. And the fact is people are going to have family members die and folks are on that other example I gave are going to have children.

Paul: Right. And you’re going to need to put some parameters and limitations around it because when you have really good, clear, reasonable policies, I find that employees don’t get nearly upset about the policy. It’s the vagary. Yeah. It’s them going out researching because you don’t have a maternity leave policy or because you don’t have a bereavement policy. And finding what you could or should have might have done if you had gotten it right.

Jason: Or what they think might apply to them. But it actually may not.

Paul: Or they come back in and tell you, you know, I’m taking three months off for the baby thinking that they get family medical leave, act protection and, you know, those things. And when they don’t, you know, you have to come back and make a course correction which doesn’t always land very well.

Jason: Right? So basically just setting the expectations ahead of time, making everything clear.

Paul: OK. So for all of our members out there, when you’re sitting on your private plane out on the tarmac, and you just got done in Vegas and you got your private chef with you and your entourage and everybody with you and and the plane is delayed taking off because well, we know why it was delayed taking off.

Jason: It’s a frequent scenario 

Paul: It’s a frequent scenario for our listeners, I know that Youre sitting on your private plane. Don’t fire the chef for leaving the plane and booking their own flight so that they can get back to a family member to take care of them. And especially don’t do that if you live in one of the about the 11 or 12 states now that gives sick pay and that is required as part of public policy or you don’t understand whether or not other laws may apply to you.

Paul: Boy that was really vague at the end. That’s H.R. isn’t it.?

Jason: That is HR and now we know.

Paul: All right so I don’t know and I don’t have any Lil Wayne references here. I wish I had I wish I had I need lyrics. I need some lyrics. I will come back. We will cut in some Lil Wayne lyrics. We can’t cut him in because then I’d have to pay him.

Jason: Then there’s copyright.

Paul: Yeah, yeah, yeah.

Jason: No, we don’t want any of that.

Paul: I don’t have to do that. But thanks. Yeah. Thanks for the spirited discussion. 

Jason: Absolutely. Thanks, Paul.

Voice Over: Thanks for joining us for this week’s episode of What The Hell Just Happened? do Paul a favor; share this with your network. If you have an HR issue or a question, you’d like us to discuss on this show, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join the private Facebook group, HR Base Camp, or visit HRbasecamp.com. Make sure you tune in next week. And remember: better workplaces make better lives.

Jan 10, 2023

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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