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Able to fire this "trial" employee?


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#1 ryne661

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Posted 14 November 2012 - 12:12 PM

We have an employee we hired on our large dairy about a week ago who is not working out. We usually have a "2 week trial employment" policy where if we get rid of them we pay the hours that they have coming, but do not have to pay them unemployment. Is this legal? I heard you could extend this for up to three monthes?

The employee previously mentioned I was planning on firing at the end of the week, but yesterday she hurt herself while working and had to file a workman's comp claim. Is there a way to fire her with our two week trial method or are we stuck with her now? I know we have to pay the workman's comp claim, that isn't a problem


#2 Fallen

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Posted 14 November 2012 - 12:48 PM

You aren't obligated to keep someone on simply because they were injured on the job. Even had that not happened, unless you're in Montana, it's unclear why you think you cannot fire this person at any time for no reason regardless of whether you're in some self-imposed "trial" period (even in Montana ... the only place I know of that has some prohibition against firing someone for no reason at all ... there are exceptions to that rule).

Not clear why you believe your company "pay[s] ... unemployment" vs. the state unemployment fund to which you and other employers make contributions via a payroll tax. It also sounds like you don't know how long someone would need to work with you before an unemployment benefits claim would be under your company's record such that you'd need to worry about firing people willy-nilly and thereby causing your payroll tax contribution rate to increase. Please look into your unnamed state's eligibility requirements for unemployment (hit your state's unemployment commission site).

I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)


#3 Tax_Counsel

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Posted 14 November 2012 - 01:20 PM

You didn't mention in what state the employee is employed, and that matters because most employment law is state law. That said, in pretty much every state a private employer may legally terminate an employee at any time for almost any reason. More specifically, when the employer is not a government agency, then the employer may legally fire an employee for any reason (or no reason at all) except for a few reasons prohibited by law. The prohibited reasons include firing the employee because:[list]
[*]of the employee’s race, religion, sex, national origin, age, disability, or genetic test information under federal law (some states/localities add a few more categories like sexual orientation);
[*]the employee makes certain kinds of reports about the employer to the government or in limited circumstances to specified persons in the employing company itself (known as whistle-blower protection laws);
[*]the employee participates in union organizing activities;
[*]the employee uses a right or benefit the law guarantees you (e.g. using leave under FMLA);
[*]the employee filed a bankruptcy petition;
[*]the employee’s pay was garnished by a single creditor or by the IRS; and
[*]the employee took time off work to attend jury duty (in most states).
[/list]
Firing the employee because she just "wasn't working out" isn’t among those prohibited reasons and would not be wrongful termination. Firing her because she got injured and made a workman's comp claim, however, might a be a problem. That depends on the applicable state law. Firing her because of a disability (if the injury resulted in a disability) would violate the Americans with Disabilities Act (ADA) if the employer has at least 15 employees. Firing her right after the injury and workman's comp claim may look like you are firing her for one of those reasons, so you may need to take care about how and when you fire her.
As for unemployment compensation, the employer doesn’t pay that — the state does. Of course, terminations of employees can result in increased unemployment taxes for the employer. Generally state laws allow an employer to have a short probationary period in which the employer may fire the employee without any cause and still not bump up the unemployment tax rate. The details of that will, again, depend on the applicable state law.

#4 Guest_FindLaw_Amir_*

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Posted 15 November 2012 - 10:49 AM

To learn more about this subject matter, you may wish to visit the Employment Law Center as a good resource. For further clarification, you may want to discuss this matter with a local Employment Lawyer.

#5 pg1067

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Posted 15 November 2012 - 12:18 PM

We have an employee we hired on our large dairy about a week ago who is not working out. We usually have a "2 week trial employment" policy where if we get rid of them we pay the hours that they have coming, but do not have to pay them unemployment. Is this legal? I heard you could extend this for up to three monthes?


The last sentence above isn't a question despite your use of a question mark. As for the "is it legal" question, whether an employer must "pay . . . unemployment" obviously depends on the applicable state law, and you didn't identify your state. As far as firing the "trial employee," no law in any state will require that you follow your usual "2 week trial employment" policy" (esp. if you pay the employee for time that she would have worked during the remainder of the two weeks).


The employee previously mentioned I was planning on firing at the end of the week, but yesterday she hurt herself while working and had to file a workman's comp claim. Is there a way to fire her with our two week trial method or are we stuck with her now? I know we have to pay the workman's comp claim, that isn't a problem


That the employee filed a WC claim doesn't preclude you from firing her. However, it obviously gives rise to the possibility that the firing was because of the injury and/or the WC claim. That could prove messy unless you have unequivocal documentation from before the injury that the employee was on the short road to termination.




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