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Position Eliminated--Case or Not? California

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  • Position Eliminated--Case or Not? California

    The company for whom I work (>500 employees) was recently acquired. I work in the accounting department. Several of my coworkers have been told their positions will be eliminated (as you would expect with an acquisition). My current position is one of three positions with the same title and responsibilities.

    Although we all thought our positions would not be affected by the acquisition, I was just told that my position is being eliminated. The reason I was given is that my position was being downgradaed as a result of the acquisition. Specifically, they do not need someone with as much experience as I have and are planning on replacing the position with a slightly different position with much lower compensation.

    I asked how they determined who would be eliminated (out of the three of us) and was told that the main reason is cost. They were explicit that performance was not an issue and that all three of us had fine performance ratings. I am female, a minority, cancer survivor who recently gave birth to my third child. I have no evidence or history to suggest that the employer discriminates; however, I feel like I was singled out for more than just money.

    My first question is if using the fact that my compensation is higher (by about 50%) to determine who of three similiar individuals position would be eliminated legal. If not, my second question is if I would have a claim that I was discriminated against. I should mention that one of the other individuals is also female, recently had a baby, and is the same nationality as I am. I am worried that would really weaken any discrimination claim.

    Despite this, I really want to keep my job. The pay is considerably better than I could find elsewhere. Because of the acquisition, the company is offering fairly generous severence packages, but I have to sign a release to get the benefits. If I do end up having to get another job, I cannot afford not to get the severence package. I also am worried about prospetive employers finding out I brought legal action because they think I am litigious.

    Any help is appreciated.

  • #2
    JaminEP: My first question is if using the fact that my compensation is higher (by about 50%) to determine who of three similiar individuals position would be eliminated legal. Absolutely legal.

    JaminEP: I am female, a minority, cancer survivor who recently gave birth to my third child. I have no evidence or history to suggest that the employer discriminates... do I have a claim that I was discriminated against. I should mention that one of the other individuals is also female, recently had a baby, and is the same nationality as I am. I am worried that would really weaken any discrimination claim.

    Despite "having no evidence or history to suggest that your employer discriminated against you," you want to sue just because you fall within the "right" demographics. Stop already!
    Barry S. Phillips, CPA
    www.BarryPhillips.com

    IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

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    • #3
      If another employee who is of the same nationality and who also just had a baby was retained, that would, indeed considerably weaken, if not completely wipe out, a discrimination claim.
      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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      • #4
        Just speaking to a labor attorney could be kept a secret. It is when that attorney contacts your company is when you become litigious.

        You may want to speak to someone about the downgrade. Under some circumstances it could be considered constructive termination.

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        • #5
          Downgrading the position and eliminating the person who makes the most money is not constructive discharge. Not anyway you slice it. The OP isn't quitting, she is being terminated.
          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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          • #6
            Originally posted by TONYAFD View Post
            it could be considered constructive termination.
            When someone quits a job because the conditions there are unbearable, it is constructive discharge. That does not mean the employee has grounds to sue.

            Cutting pay can cause someone to quit. They might be able to get unemployment, but little more unless there was some illegal basis for the reduction in pay.

            In any event, I don't see constructive discharge in the OP's case. She is being let go. Based upon the information presented, there does not seem to be any illegal reason for the termination. She is certainly free to contact an attorney to discuss the details in greater depth.
            Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

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