I review your California employee termination before you fire them, not after the FEHA complaint arrives.

Each tier is a defined deliverable, not an open retainer.

I scope every employer engagement in writing before any work starts. The deliverables below are what you actually receive. Anything outside the listed scope is not in the engagement and is quoted separately if you need it.

Hourly review and triage, $240/hr

• One-off questions about a single termination, billed in 0.1-hour increments
• Post-termination triage if the employee has already been fired and something feels off
• Quick review of a draft termination notice or PIP document
• Custom scope: anything that does not fit the fixed-fee packages
• Written scope agreement before any work; cap visible up front

Separation-agreement review, $349 flat

• Review of a separation, severance, or release agreement someone has already drafted
• Issue-spotting against current California law: SB 331 carve-outs, OWBPA compliance if 40+, non-compete and non-solicit limits under Business and Professions Code section 16600, confidentiality scope
• Written redline memo with specific clause-by-clause changes
• One revision round on the memo
• Turnaround: 3 to 5 business days from receipt of the document

Pre-termination compliance review, $1,200 flat (most common)

• Full review of the personnel file, performance documentation, and PIP history
• FEHA protected-class red-flag screening across all protected categories
• Compliance memo identifying the top risks, the legal exposure, and what to fix before the meeting
• Revised termination notice citing performance reasons only, no legally-loaded language
• Termination meeting script with planned responses to common employee reactions
• Forms-packet checklist: final paycheck calculation, Notice to Employee as to Change in Relationship plus EDD pamphlet DE 2320 (For Your Benefit), COBRA or Cal-COBRA notice, HIPP, itemized wage statement under Labor Code section 226
• Turnaround: 3 to 5 business days from receipt of the file

Full package with separation agreement, $1,950 flat

• Everything in the $1,200 pre-termination review
• Plus a drafted California separation agreement with release of claims tailored to the facts
• OWBPA-compliant if the employee is 40 or older: 21-day consideration period, 7-day revocation period, statutory recitations
• SB 331 and CCP section 1001 compliant non-disparagement and confidentiality language
• Non-compete and non-solicit clauses written within Business and Professions Code section 16600 limits
• Mutual non-disparagement provision where appropriate
• One revision round on the agreement

Scope expansion: trial defense, EEOC or CRD (formerly DFEH) response, deposition preparation, mediation, and arbitration are not in any of these packages. If a claim arises after the termination, that is a separate engagement and I will quote it then.

The statutory items I check on every pre-termination review.

California is one of the most employee-protective states in the country. The compliance list below is the floor, not the ceiling. A defensible termination satisfies all of these before the meeting happens, not after.

Final wages and waiting-time penalties

• Labor Code section 201: all earned and unpaid wages are due at the time of termination, in hand at the meeting
• Labor Code section 227.3: accrued unused vacation must be paid out at the final regular rate of pay
• Labor Code section 203: waiting-time penalties of one day of wages per day late, up to 30 days; this is the single most expensive mistake employers make on terminations
• Labor Code section 226: itemized wage statement at termination, with all required line items
• Direct deposit alone is not safe; the rule is wages "at the place of discharge" under section 208, which usually means a physical check unless the employee has affirmatively authorized direct deposit and you can prove delivery same-day

Required forms at separation

• Cal. Code Regs. tit. 22 section 1089-1: Notice to Employee as to Change in Relationship, EDD pamphlet DE 2320 (For Your Benefit), required at termination
• EDD pamphlet DE 2320, For Your Benefit: handed to the employee at the termination meeting
• HIPP notice: Health Insurance Premium Payment program eligibility, where applicable
• Itemized wage statement: Labor Code section 226 line items including hours, rate, gross, deductions, net, and accrued sick leave balance

Group-health continuation

• Federal COBRA (29 U.S.C. section 1161 and following): for employers with 20 or more employees in the prior year, election notice within 14 days of the qualifying event
• Cal-COBRA (Health and Safety Code section 1366.20 and following): for employers with 2 to 19 employees; insurer (not employer) typically sends, but employer notifies the carrier promptly
• Failure to provide a timely COBRA notice triggers federal penalties up to $110 per day per qualified beneficiary, plus state-law claims

Personnel-file access

• Labor Code section 1198.5: employee may inspect and receive a copy of personnel records within 30 calendar days of a written request
• Labor Code section 226(b): payroll records within 21 calendar days
• Penalty of $750 plus attorneys' fees for non-compliance, and a personnel-file refusal is one of the fastest ways to convert a borderline termination into a clear retaliation case

Separation agreements with employees 40 and over

• OWBPA (29 U.S.C. section 626(f)): 21-day consideration period for individual separations, 45 days for group reductions
• 7-day revocation period after signing, agreement not effective until the revocation window closes
• Plain-language requirement, written recommendation to consult an attorney, list of the job titles and ages of all employees selected and not selected if a group reduction
• Missing any of these renders the age-claim release unenforceable, even if the rest of the release holds

Separation-agreement clause limits (post-2022 amendments)

• SB 331, Government Code section 12964.5: no clause that prevents disclosure of unlawful acts in the workplace; carve-outs for discrimination, harassment, retaliation
• Code of Civil Procedure section 1001: no settlement provision preventing disclosure of facts about sexual harassment, sex discrimination, or retaliation claims that have been filed
• Business and Professions Code section 16600: non-compete clauses are void in California, with narrow exceptions; SB 699 (2024) extends this to out-of-state non-competes too
• Labor Code section 925: California-employed employees cannot be required to arbitrate or litigate outside California absent counsel of choice

Pretext analysis is the core of any FEHA defense.

A wrongful-termination claim under FEHA is rarely about whether the stated reason is true. It is about whether the stated reason is the real reason or a pretext for an illegal reason. The pretext signal is almost always timing. The factors below are what I check in every personnel file before signing off on a termination.

Recent protected activity (the highest-risk category)

• Recent FMLA or CFRA leave in the last 12 months: termination within weeks of return is a textbook retaliation case
• Recent workers' compensation claim: Labor Code section 132a creates a specific anti-retaliation right, with reinstatement and back-pay remedies
• Recent wage-and-hour complaint: Labor Code section 1102.5 whistleblower exposure (reinstatement, back pay, civil penalties, attorney-fee exposure, burden-shifting)
• Recent harassment or discrimination complaint, even informal: FEHA retaliation requires only opposition or participation, not a formal filing
• Recent accommodation request: termination after an accommodation request creates a near-prima-facie case absent strong contemporaneous documentation
• Recent DOL or CRD inquiry or audit: retaliation against an employee who provided information is per se actionable

Protected-characteristic flags

• Age 40 or over: Age Discrimination in Employment Act and California Government Code section 12940 protections; OWBPA-compliant release required for any severance
• Disability or recent injury: FEHA has broader coverage than the ADA, including perceived disability and association with a disabled person; reasonable-accommodation interactive-process documentation is critical
• Pregnancy or pregnancy-related disclosure in last 12 months: Pregnancy Disability Leave, Government Code section 12945, and the Pregnant Workers Fairness Act create overlapping protections
• Religious accommodation history: recent request for schedule change, dress modification, or prayer accommodation
• Race or national origin: if the employee is in a protected category and the comparator analysis shows different treatment for similar conduct, that is the case
• Sexual orientation or gender identity: FEHA protected categories under Government Code section 12940(a)
• Marital status, military or veteran status, genetic information, primary-language requirements: all FEHA-protected

Pretext timing windows

• Termination within 30 days of protected activity: strong inference of retaliation, plaintiff usually survives summary judgment
• Within 90 days: still actionable, but employer's contemporaneous documentation matters more
• Within 6 months: protected activity is admissible as circumstantial evidence; documented performance issues predating the activity become essential
• The cleanest defense is performance documentation that predates the protected activity and continues consistently through to the termination decision

Comparator analysis

• How have similar performance issues been handled with other employees outside the protected class?
• Has anyone with worse documented performance been retained?
• Is the PIP standard applied consistently across the workforce or selectively applied to this employee?
• Are the customer or operational complaints documented for this employee but not for similarly-situated peers?

If any of the items in this section apply, the right answer is not necessarily "do not terminate." The right answer is "do not terminate this week; document the legitimate non-discriminatory reason on a longer timeline so the inference of pretext weakens." That is the conversation we have in the compliance memo.

The meeting itself is where employers most often create the lawsuit.

Most wrongful-termination cases are not made or lost in the personnel file. They are made or lost in the meeting and the 48 hours after. The protocol below is what I draft into the meeting script.

Pre-meeting setup

• Two managers present. One delivers the decision, the other observes and takes notes. Both can later testify to what was said.
• Pre-written script. The deciding manager reads from the script. No improvisation, no off-the-cuff explanations, no "between us" comments.
• Final paycheck in hand. Physical check including accrued unused vacation under Labor Code section 227.3, ready before the meeting starts.
• Separation packet pre-assembled. Notice to Employee as to Change in Relationship, EDD pamphlet DE 2320 (For Your Benefit), COBRA or Cal-COBRA notice, final wage statement, separation agreement if applicable.
• IT and access pre-coordinated. The deactivation happens during the meeting, not before (alerts the employee) and not after (creates a window for data exfiltration).
• Private room, neutral location. Not the employee's office. Not a conference room with glass walls. The employee's dignity matters, and so does keeping the meeting confidential.
• End-of-day timing for some roles, mid-week for others. Fridays minimize ongoing exposure but maximize emotional pressure; mid-week is calmer and gives the employee daylight to process.

The meeting itself

• 15 minutes or less. This is a decision delivery, not a discussion.
• Performance reasons only. The script cites the documented performance issues. It does not cite "fit," "attitude," "personality," or "we just need to go a different direction." Vague reasons are pretext-bait.
• No off-script discussion. If the employee asks why, the manager reiterates the documented reasons and does not elaborate.
• No recording. California Penal Code section 632 makes it a crime to record a confidential communication without all-party consent. Do not record. Do not consent to the employee recording.
• If the employee threatens to sue: acknowledge calmly, do not argue, do not concede, refer them to writing for any concerns about the process, end the meeting.
• If the employee invokes a protected characteristic or refers to a recent complaint: stop the meeting if you can, do not concede liability, document the statement verbatim in the post-meeting summary, escalate to counsel before completing the termination if possible.
• Hand over the separation packet. Walk the employee through what is in it briefly. Do not pressure for an immediate signature on a release.

Immediate post-meeting

• IT offboarding during the meeting. Email account, VPN, building access, internal systems, all deactivated at the moment the decision is delivered.
• Company property collection. Laptop, phone, keys, badge, credit cards, files. Inventory documented and signed by the employee or noted as refused.
• Escort from the building. Done with dignity, but consistently for all terminations to avoid disparate-treatment claims.
• Post-meeting summary. Both managers draft a written summary of the meeting within 24 hours, signed and dated, retained in the personnel file.
• Internal communication plan. Decide in advance what is said to the team. A neutral departure message that does not disparage the employee and does not invite speculation is the standard.

If the employee asks for time to consider a separation agreement, that is good. The 21-day OWBPA window for employees 40 and over is mandatory; for younger employees a 7 to 10 day window is common and is generally not coercive.

This service has a specific lane. Not every termination fits.

If your matter is in the right-hand column, I will tell you on the intake call and point you to a better resource. The downstream link below ("Limited-Scope Litigation, California") is where employer-side litigation defense lives if the worst happens.