Terminating the Employment Relationship

It is also important to consider the potential legal ramifications of a layoff in the same manner as an employer does when making the decision to terminate. For instance, an employee who receives a layoff notice within a week of filing a sexual harassment complaint, a safety complaint with CalOSHA, or a workers’ compensation claim will likely believe they are being laid off because of their protected activity. Potential legal ramifications are discussed above in the Termination section, but apply with equal force to layoffs. D. L AYOFFS I N L IEU OF T ERMINATION : D UE P ROCESS C ONCERNS Due process issues can arise with layoffs. Due process issues often arise where the laid off employee can show that the layoff was me rely an attempt to circumvent the employee’s due process rights that would attach if they were to be terminated. This may occur in those situations where performance evaluations are not properly completed and allow a marginal employee to avoid discipline for years with undeserved positive evaluations. The employer may not believe the discipline will be upheld given the evaluations and seek to accomplish a termination via layoff. If the allegations are proven, a deprivation of due process can lead to reinstatement with back pay and benefits, other compensatory damages and recovery of the employee’s attorney’s fees. Given these risks, layoffs are not an appropriate substitute for disciplinary procedures. Rather the employer should terminate the employee for cause pursuant to its disciplinary procedure and rely upon sufficient evidence to support disciplinary action. In addition, under the federal court decision of Levine v. City of Alameda , it is arguable that agencies are required to provide pre and post-termination due process rights for all property interest employees who are laid off. 328 At minimum, where an employee claims that the layoff is pretextual for a for cause termination ( e.g. layoff was in lieu of a discipline based termination), the employee is entitled to have the issue resolved through the Skelly pre-action and post termination administrative appeal process. Moreover, there is a greater risk of challenge if the agency has a performance based (as opposed to a seniority based) layoff procedure and does not provide pre and post-termination due process procedures.

L EGALLY E NFORCEABLE S ETTLEMENT AND S EPARATION A GREEMENTS

Section 7

Parties often end employment relationships or resolve disputes arising from the end of an employment relationship by executing a settlement or separation agreement. In most cases, such agreements sever all ties between the parties and specifically provide instruction regarding how the parties will act if their paths cross again. A key to a solid, enforceable settlement or separation agreement – like all contracts – is clarity. The agreement must be written in a manner that allows a party unfamiliar with the circumstances that led to the agreement to read the agreement and clearly understand the parties ’ obligations under the agreement. The difficulty in drafting a solid, enforceable agreement is crafting language that clearly defines the parties ’

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