If it looks like a layoff, smells like a layoff...
December 3, 2012 6:19 AM   Subscribe

Coming off of a leave of absence and being told my job no longer exists -- is it still a layoff if I don't take the new job they are offering that is a step down?

Finishing up my maternity leave, and being told there is some restructuring afoot. The job I had previously no longer exists, and instead it has been replaced with a new job description that is quite a bit more junior. I'm being offered this job, or the ability to take severance. Since it is being offered to me as a choice that I make, does this mean I am essentially resigning instead of being laid off if I do not take them up on the offer of the position?
posted by anonymous to Work & Money (10 answers total) 1 user marked this as a favorite
Constructive dismissal is a real thing that exists - but I can't believe I even wrote that much before getting to the real answer which is "You really, really need to talk to a lawyer." For that matter, even the semi-answers we might give are heavily dependent upon jurisdiction (ie, FMLA-related answers aren't helpful to a woman in Canada or Norway.) So, in short: Lawyer Lawyer Lawyer.
posted by Tomorrowful at 6:22 AM on December 3, 2012 [7 favorites]

This may depend on your state, but I think it can be considered a layoff. I remember something in PA unemployment law about reduced hours/pay.
posted by DoubleLune at 6:23 AM on December 3, 2012

Were you on FMLA? In any case, find a good employment lawyer. And make sure to take notes at any meeting, and keep any email or documents.
posted by theora55 at 6:24 AM on December 3, 2012 [2 favorites]

If you were on FMLA, your job is protected. I work with employers on FML administration and I advise them to place the employee back into the job they left or one that's substantially the same - same hours, pay, etc.
posted by Coffeemate at 6:52 AM on December 3, 2012

If you were on FMLA, your job is protected.

But not any more protected than an employee that wasn't on FMLA. If there was an actual restructuring or layoffs, being on FMLA doesn't mean that the OP isn't subject to whatever the whole company is doing.

In other words, fact-specific, talk to a lawyer.
posted by Pax at 7:32 AM on December 3, 2012 [2 favorites]

It's also not clear in the OP whether the "step down" "quite a bit more junior" is actually not "same hours, same pay". Lawyer.
posted by CathyG at 7:42 AM on December 3, 2012

Two words - Employment. Lawyer.
posted by PorcineWithMe at 8:07 AM on December 3, 2012

Get a lawyer.

That said, is the Severance package good? It might make sense for you to take the package, and get a new job.

Is this a legit restructure of the company, or just a dick move to demote you in particular?

I went through a situation where my company was acquired and over two years my job morphed from an amazing job where I traveled and had a great time, to sitting around in my basement. I was so happy to get the buyout it wasn't even funny.

Either way, getting out might be the best thing. If you take severance, after that's over, you'll be able to collect unemployment.

Sometimes, even when someone or a company does the wrong thing, the best move you can make is to get a better job on your own.

On the other hand, is it the same pay, just a different job? If that's the case, what's to prevent you from taking the position, and then doing a simultaneous job hunt?

Is this just a way to piss you off so you'll leave? If so, weigh your options and do what YOU would prefer to do.

The one thing you can't do, is get your old job back, just like you left it. And no lawyer can make them give it to you.

Just some things to think about.
posted by Ruthless Bunny at 8:16 AM on December 3, 2012

Lawyer would be really helpful, here.

I just got through reading an update on a local list from a mother who faced a similar situation and it ended up winding its way through the Equal Employment Opportunity Commission process for 2yrs and yielded her a very large payout (and censure of the company), as it was wrongful.

Then again, it may be just fine and the lawyer would only help you find out which choice will keep you eligible for UI. That's pretty big, too.

I wish you luck.
posted by batmonkey at 10:17 AM on December 3, 2012

If you were on FMLA, your job is protected.

But not any more protected than an employee that wasn't on FMLA. If there was an actual restructuring or layoffs, being on FMLA doesn't mean that the OP isn't subject to whatever the whole company is doing.

Pax has it (and the same generally holds true for other potential types of discrimination claims -- like sex or pregnancy). Here's the pertinent FMLA regulation:
ยง 825.216 Limitations on an employee's right to reinstatement.

(a) An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.
At the end of the day it's the employer's burden of proof. And this is going to be a very fact-specific issue -- how bona fide is the employer's action? Would the employee really have been impacted had she not been on FMLA leave?

Likewise, the characterization of a separation as a resignation, a termination, or a mutual separation will depend on the specific facts and circumstances -- nobody here could answer without a lot more information. So, yes, if you are inclined see a lawyer -- they can ask you all the relevant questions and provide you options. However, if the severance (or even the new job) looks like a good deal, you should seriously consider taking it. Dealing with lawyers and lawsuits is never pleasant.
posted by pardonyou? at 2:53 PM on December 3, 2012

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