COVID-19 Fallout: Older American Let Go After Heeding Publicized Cautions Regarding Public Health Risk

I am a member of the nextdoor.com community in California. I posted my previous article in an effort to help those right in my community.

I quickly heard from a neighbor on this site the following:

“Thank you for your ideas! I have friends being laid off and my biggest questions are.. what are the laws here? aren’t some of them protected? Probably a question for a lawyer. I have a friend who is over 70 and after it was stated that those over 60 should stay home, she told her employer (a school that is closed and doing home-school) that she needed to stay home for safety. She had sick time she could use for this as well. Then after a week her boss said, I really needed you here this past week and now I just don’t see a role for you here — and let her go. Isn’t this retaliation?”

My response to her follows…

Many years ago I worked in HR as an HR business partner. While I am acquainted with many of the laws due to the fact that I am a recruiter, you are correct that a lawyer would provide the most reliable answer. Many are working from their homes and may be hard to reach.

In general, although the below is not intended as legal advice for anyone who may be reading it, I will offer some general information.

Yes… there are protected classes such as females, those over a certain age (age 40), races, the disables, but California is an “At Will” state. That means that employment “contracts” are terminable (can be terminated) “at-will” by either party (employer or employee) without prior notice for any reason. Having said that, it does not mean that those who feel that they were unfairly treated do not have the ability to pursue legal action and challenge the fact that the employer was the “moving party.” Hence, the number of labor lawsuits we see and hear about.

These types of terminations can happen in most companies, although some have prescriptive processes that must be followed (some companies enforce them more effectively than others). Some companies, in fact only permit a person to be let go if HR is advised and is in agreement, and that’s typically after a progressive discipline process has been followed (e.g., incidents are documented and typically, 2 or more meetings take place over a period of time such as 30, 60 and then 90 days or sooner, depending upon the severity of the performance or other incident/violation).

If your friend worked for a smaller company, they, like many may fly under the radar (and some under a certain number of employees are not subject to the same regulations as larger companies), and may not have protocols that are followed.

Is there someone above your friend’s boss that she can diplomatically and calmly appeal to? That may be a first step. Was the job worth the time, effort, emotional and/or physical stress, and legal fees that it may cost? I know for smaller companies, sometimes, a letter from an attorney may be enough to reinstate the employee, but then there will likely be a strained relationship that both parties need to contend with.

I suggest going online and researching the California Labor Code for terminations. Perhaps it may offer some relief (especially if they did not pay her within the prescribed timeframe, have withheld wages, etc., in which case, there could be damages including a provision for treble (triple) damages in certain circumstances).

Do you have any colleagues who are currently in HR roles (ideally ones with certifications such as SPHR? They may have more timely knowledge of the laws and/or suggestions.

As an aside, in the midst of a world health crisis, if an employer releases an employee for staying home due to health concerns that are publicly broadcast (and no other performance issue or incident preceded that action), is this really an employer that your friend should be working for? I realize that at age 70 (and in many cases, even many years earlier), those who wish to work are victims of age discrimination, and finding suitable work is a HUGE challenge. I suggest that your friend consult AARP’s list of employer-friendly companies and/or industries such as hospitals and educational institutions. and bring her talents to an organization that appreciates them.

Hope this helps in some way…