10.3 Performance Evaluation, Personnel Records, and Termination

Performance Evaluation, Personnel Records, and Termination

Quick Answer: California employment is at will under Labor Code § 2922, but at will never means for an unlawful reason. The expensive part of employment law is the end: a discharged employee must be paid all wages due immediately at the time of termination (§ 201); an employee who quits with 72 hours' notice is paid at the time of quitting, and one who quits without notice within 72 hours (§ 202). Miss it and § 203 waiting time penalties run at one day of wages per day late, up to 30 days. Keep payroll records 3 years (§ 1174), and honor an employee's right to inspect their own personnel file and wage statements, generally within 30 calendar days of a written request.

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1. Evaluating Roofing Crew Performance

Roofing performance is measurable, which makes evaluation easier to defend than in most trades.

Run evaluations on a schedule — a 90-day review for new hires and an annual review thereafter — and write them the same way every time: specific observed behavior, the standard, the gap, the corrective action, and the date it will be re-checked. Have the employee sign to acknowledge receipt (not necessarily agreement) and give them a copy.

Progressive discipline — verbal coaching documented, written warning, final written warning, termination — is not required by statute, but it is the single most useful defense against a wrongful termination or discrimination claim, because it produces a contemporaneous record of a legitimate, non-discriminatory reason. Reserve immediate termination for conduct that warrants it: a willful fall protection violation, theft, violence, or intoxication on a roof.

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2. Required Personnel Records and Retention

Keep three separate files. The personnel file holds performance and discipline. A confidential medical file holds medical certifications, workers' compensation records, and accommodation documentation. A separate I-9 file holds the I-9s. Mixing medical information into the personnel file is itself a compliance problem.

Employee Inspection Rights

• Labor Code § 1198.5 — an employee or former employee may inspect or receive a copy of their personnel records relating to performance or to any grievance. The employer must comply generally within 30 calendar days of a written request.
• Labor Code § 226(b) — an employee may inspect or copy payroll records; the employer must comply generally within 21 calendar days.
• Keep a written request log with dates, because the penalties attach to the deadline, not to the substance.

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3. At-Will Employment and Its Limits

Under Labor Code § 2922, employment with no specified term may be terminated at the will of either party. That presumption can be undercut by an express contract, by a collective bargaining agreement, or by an implied contract created through handbook language, long service, and repeated assurances of continued employment. Keep an at-will disclaimer in the handbook and the offer letter, and train supervisors not to promise job security.

What at will never permits. Termination is unlawful when the reason is:

• A protected characteristic under the Fair Employment and Housing Act
• Retaliation for reporting a safety hazard or refusing unsafe work — Labor Code § 6310 protects a roofer who refuses to work at height without protection and who complains to Cal/OSHA
• Retaliation for a wage complaint, a workers' compensation claim, jury duty, voting, or protected leave
• Whistleblower retaliation under Labor Code § 1102.5
• Refusing to commit an unlawful act

Document the legitimate reason contemporaneously. A termination decision documented after the employee files a claim carries far less weight than one written the day it happened.

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4. Final Pay: The Deadlines That Generate Penalties

What "all wages due" includes: all hours worked through the final minute, overtime, any unpaid meal and rest period premiums, commissions and bonuses that are calculable, and all accrued, unused vacation or PTO — California treats accrued vacation as earned wages that cannot be forfeited. Accrued paid sick leave generally need not be paid out.

Waiting Time Penalties (Labor Code § 203)

If final wages are willfully late, the employee's wages continue as a penalty at the daily rate for each day the payment is late, up to 30 days.

Worked example. A roofer earning $30.00 per hour on an 8-hour day is laid off on a Friday and the employer mails the final check the following Friday — seven days late.

$\text{Daily wage} = 30.00 \times 8 = \$240$ $\text{Penalty} = 240 \times 7 = \mathbf{\$1{,}680}$

If the employer had waited a full month, the penalty would cap at 30 days: $240 \times 30 = $7{,}200$ — on top of the wages actually owed. Carry a manual check and a wage statement to every layoff.

The Termination Checklist

Final check with all wages and accrued vacation, delivered on the statutory deadline. Final itemized wage statement. EDD pamphlet DE 2320, For Your Benefit, given to every separating employee. Notice to Employee as to Change in Relationship stating the date and reason. COBRA or Cal-COBRA notice where a group health plan applies. Collection of keys, tools, safety equipment, and any company harness — with no deduction from the final check for unreturned property, which California prohibits. A brief, factual documented reason in the personnel file.