Drug Testing, Suspensions, Warnings,

[graceous]

What is the name of your state (only U.S. law)? CA

Need to terminate someone's employment. There have been warnings in writing, and suspensions for aggressive behavior, strong suspicions of drug use, threats of lawsuits by the employee, as well as tardiness, outbursts of anger, yet there is thinking that we need to gather evidence and have the employee submit to a drug test as well. I am thinking, with CA privacy laws regarding drug testing, even with reasonable suspicions, that this is not a wise decision, but maybe it would be the best decision. Top person does not seem to understand that there is already enough documentation to terminate employment and is worried about a lawsuit What is the best way to proceed?

 

[eerelations]

Unless you have a binding contract with this employee that specifically defines termination provisions, you are legally able to fire this employee for pretty much any reason (except those reasons prohibited by law, such as race, religion, disability, gender, and/or age etc.) under the legally valid at-will employment concept. Without any documentation! Certainly tardiness and/or aggressive behaviour are legally valid reasons to fire someone. In fact, you can even legally fire someone for wearing green socks to work! (TY ECs for this example.)

Obviously Top Person thinks there's something more going on here...what is it? If you can tell us more about what it is, we can tell you more about what you need to do.

 

[graceous]

Thank you for your response. A lot more going on, but political and very complicated for this small business.

 

[eerelations]

We can't advise you if you're unwilling to tell us why Top Person thinks it would be illegal to fire this employee.

 

[commentator]

This is not uncommon. "Top person" is not familiar with the labor laws, doesn't really understand fire at will, is acting like there's more in the pipe line that underlings might not get hold of. What it amounts to is that you can hold on to someone way too long, and the downside isn't a lawsuit, there's not one, but they will probably end up qualifying for unemployment insurance due to your employer's dallying about. When someone needs firing, give them three warnings for the same thing, and they're out. Keep adding on a hodgepodge of reasons, keep holding them working while they should've been fired a long time ago, and when you do finally get around to it, it costs the company money in unemployment rates, not because of some nefarious lawsuit the employee might have, but because the management didn't do it quickly and decisively.

 

[graceous]

Spot on advice, Commentator. Thanks! I am going to discuss your comment with other management. As it stands, they think they have to do a drug test under reasonable suspicion. I think that's creating a whole other ball of wax, i.e. suppose it was negative??

 

[eerelations]

And suppose it was positive and the employee suddenly enters rehab and demands special protection under the ADA?

There is no legal requirement for a drug test. As commentator said (and as I said too!), you may legally fire this employee right now.