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Do I have to take the demotion?

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traviz28

Junior Member
What is the name of your state (only U.S. law)? California

I worked as a supervisor in a casino for 5 years, making 55k+ a year salary. I have a pretty clean record of issues but I made one mistake that is debatable in the written policy versus verbal policy. Because of this one time error, I was placed on investigative suspension. now 5 days later, I am told that I can step down to a lower position at 14/hr + tips or I cannot work there anymore. They did not specify if it would be considered fired or if it would be quitting.
Another thing to consider is I have over 300 hours of vacation saved up, I would hate to see that value drop from my 25ish an hour wage as a salaried employee to 14/hr. Do I have any chance with unemployment insurance while I look for more equally paying work?
 


quincy

Senior Member
What is the name of your state (only U.S. law)? California

I worked as a supervisor in a casino for 5 years, making 55k+ a year salary. I have a pretty clean record of issues but I made one mistake that is debatable in the written policy versus verbal policy. Because of this one time error, I was placed on investigative suspension. now 5 days later, I am told that I can step down to a lower position at 14/hr + tips or I cannot work there anymore. They did not specify if it would be considered fired or if it would be quitting.
Another thing to consider is I have over 300 hours of vacation saved up, I would hate to see that value drop from my 25ish an hour wage as a salaried employee to 14/hr. Do I have any chance with unemployment insurance while I look for more equally paying work?

What sort of "mistake" did you make that resulted in such a drastic demotion?
 

traviz28

Junior Member
It is hard to describe if your not in the industry. At our location, we offer 'locking' of machines for guests for them to utilize for breaks from gaming. I followed policy in verifying a guest plays X amount of time before they are allowed to lock a machine. A particular guest asked to lock their machine, I checked their play and showed no play yet for the day. I explained to my attendant to notify the guest that after 30 minutes of play we will lock it for them. There was no further incident from this. Four hours later that guest made a complaint against me to my manager that got my sent home that same night on investigative suspension. My management cited that I did not recognize a high-profile guest and avoided notifying management of an issue.
What I did is normal practice for verifying and following up with our policy. In fact, that same night after I was sent home, the policy was instantly changed casino-wide, to no longer require the minimum play time.
 

Chyvan

Member
I was placed on investigative suspension.

Were you being paid during your suspension? At the time, did they say, "you are to report in 5 days," or did you not know if you'd ever being going back to work? If the later, the separation occurred at the time of the indefinite suspension and you were already fired. The demotion might be treated as a new offer of work, but it's too much of a demotion to be considered suitable after such a short time on UI.

They did not specify if it would be considered fired or if it would be quitting.

They can call it whatever they want. The facts surrounding the separation will determine what it really is.

Do I have any chance with unemployment insurance while I look for more equally paying work?

Yes. If the events leading to the suspension/demotion are not considered misconduct, you can get UI.
 

HRZ

Senior Member
I am not up on CA details so double check me.

1. I think your 300'hours are firmly vested in CA but if you get a increase or decrease in wage you get paid out at the new number ...downstream hence some homework is needed as to about $8 hr cut in wages X 300 is a $2400 cut?

2. Somewhere around big wage cut like a 25% wage cut and a change in responsibilities it smells like a constructive dismissal in Ca ?

Me, I might lean towards refusing the cut in job responsibilities and wage and make them do next move ..but do some ca specific homework first......
 

commentator

Senior Member
Yes, since they chose not to fire you for what it was you did, but rather substantially changed your hours and affected your wages, etc. this is pretty much, for all intents an purposes, a forced to quit situation, and you'd have a fairly good chance of being approved for unemployment insurance, which they are obviously trying to dodge by giving you the "demotion" to force you to quit.

They probably assume you can't draw unemployment, which costs them money, if you quit. Period. This is not the case. If you quit a job, and apply for unemployment, the burden of proof is on you to show that you had a valid reason to quit the job. And it looks like you definitely do with what they've offered you instead of the job you had prior to your displeasing them by whatever you did that they didn't like.

Even if they demoted you because they think (or even if they can PROVE) you committed some truly egregious misconduct, they've gotten too fancy for their own interest here. Because if you did something terrible, and they didn't fire you for it, rather offered you a substantial pay cut and a much lesser job, then you as I said, have a good chance of being approved for benefits. If you were so bad they wanted to punish you for this supposed misconduct, they shouldn't want you around any more at all.

This is a case where I would bail immediately. DO NOT WORK ONE MINUTE AT THE LESSER JOB. If you do, then that becomes your job, you have accepted it by working at it, you've accepted the hours and the conditions and the pay and if you later quit because you just can't take it, or can't make it on so little money, or whatever the reason, you will NOT have much chance of being able to draw unemployment benefits while looking for another job.
 
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traviz28

Junior Member
Were you being paid during your suspension? At the time, did they say, "you are to report in 5 days," or did you not know if you'd ever being going back to work? If the later, the separation occurred at the time of the indefinite suspension and you were already fired. The demotion might be treated as a new offer of work, but it's too much of a demotion to be considered suitable after such a short time on UI.



They can call it whatever they want. The facts surrounding the separation will determine what it really is.



Yes. If the events leading to the suspension/demotion are not considered misconduct, you can get UI.

I am currently suspended and I am without pay. I only received a call today that they told me to call them back by sunday with my decision if I accept my new demotion. prior to this, I did not know if I was going back to work as they sent me home on "investigative suspension".

How does Unemployment insurance look at a hourly wage + tips versus salaried? that may affect my wage difference as the hourly rate is on average 7/hr putting me at around $20/hr versus the 25+ I was making.


Also, thank you all for your replies, It helps a lot in determining my choices. It appears I have to make a gamble if I want to take a lower paying position, or make an attempt with unemployment plus, finding a new job, which my resume is pretty decent looking.
 

cbg

I'm a Northern Girl
If you are asking whether there is a law, or a series of actions you can take, that will force the employer to leave you in your current job, the answer is no, there is not.
 

traviz28

Junior Member
If you are asking whether there is a law, or a series of actions you can take, that will force the employer to leave you in your current job, the answer is no, there is not.

I understand that, I am more curious with the options I have for having a chance at unemployment insurance to search for a a new comparable wage job, instead of taking this lower paying, different hours position.
 

commentator

Senior Member
Yes, I'd say you have a fairly good "chance for unemployment insurance." Really, there is no point in your deciding beforehand whether or not you're going to file a claim or whether you'll be approved for unemployment insurance or asking us for a specific law that if it is xyz compared to zyx plus tips, that's not or is an appropriate demotion, any more than that and it's not and you'll be approved....etc.

Frankly, there's NEVER a guarantee you'll be approved for benefits or denied for benefits (as long as you qualify monetarily, which means you have wages in the last six quarters from unemployment tax paying employers sufficient to set up a claim.)

What it amounts to is, it was legal for them to fire you (or permanently suspend you, which is actually fired of course!) for just about any reason and it is legal for them to offer you a demotion instead of firing you. Whether or not your on the job actions amounted to misconduct, they can walk in and decide to demote or terminate you at any time, they don't have to have a good reason to fire or demote you, they can do it "at will."

The only place where cause or actual misconduct would be an issue is in unemployment insurance because though they can fire you for any reason (or demote you) the employer must prove, if they fire you that they had a vaild misconduct reason to fire you, or else you will qualify for unemployment insurance while looking for another job and as I mentioned, this costs them money.

If you quit the job, (by not accepting the demotion) you must prove, and it is a bit harder, but not impossible, that you had a valid reason to quit the job, that you had made a reasonable effort to resolve the problem and that they were leaving you with no good choice except to quit the job. They are trying to force you to quit by offering you a less desirable job with less pay.

As far as being an exact amount of wage lowering, or a specific number of hours they have to cut you by to show that, that's not really as clear cut as to give you any guarantees. The agency will look at it, try to determine if it was an "appropriate" demotion done for business purposes.

But the agency knows the employer does NOT want to pay unemployment. They will look at the nature and reasonableness of the demotion, what you were told by the employer and what happened beforehand. (For instance, they'll determine that this demotion is not due to a business reason, like because their business is poor, this is a direct retaliation against you personally because of something they were displeased about that you've done.)

They've chosen to do this to you instead of firing you in the hopes that you'll quit and thus not be able to receive unemployment benefits. In other words, they're hoping you'll just go away. That kind of jumps out at the examiner, doesn't it?

File a claim immediately and let it play out. You have nothing to lose by this. It will take a while, six or eight weeks for a first decision and for you to start receiving any unemployment insurance if you are approved. And if you are approved, of course, it will end totally in six months or so, whether or not you have another job. It's not meant to be a needs based program, which means they don't care how bad you need it or how low income you may be.

It is insurance that is paid if the agency determines you are out of work through no fault of your own, in that you had a valid work related reason to quit this job, namely your demotion. There's no way you can pre predict and guarantee what the agency will decide, but one thing is for sure. If you shamble around and accept the demotion, you need to stay at it till you find something else, because after having worked at the new position, your chances of getting unemployment fall to just about none.
 
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HRZ

Senior Member
THere is one other "fact" to double check ASAP ...and again I'm not up on CA specifics...but per your post you seem to have already been fired ...that's what a indefinite leave without pay is.....and a new option introduced 5 days later is a new job offer ...whether it is comparable or not is not in my crystal ball ....but IF you accept it ,it probably kills the payout of your 300 vested hours at your prior pay rate ...I lean towards doing nothing but filing my UC paperwork and starting to look for comperable employment .

YOu invite problems of UC disqualification to turn down a valid offer Of work comparable to your prior role .

DOing nothing except file for UC might be safer option.

I don't thinks it's smart to opine if a $ 14 hourly role is close to a $55k salaried role so as to be comparable and disqualify one for UC.
 

PayrollHRGuy

Senior Member
The OP was "placed on investigative suspension."

California Title 22, Section 1256-1(e)(3) provides:

A disciplinary suspension of an employee for a specific period of time raises a separation issue if the employee files an unemployment insurance claim during the period he or she is suspended. Whether or not the claimant will be eligible depends upon the reason the claimant was suspended by the employer. If the claimant was suspended for wilfully and knowingly violating reasonable employer rules, the claimant will be disqualified on the basis of a discharge for misconduct connected with the work.


But is all going to come down to did the employee wilfully and knowingly violating reasonable an employer rule(s).
 

HRZ

Senior Member
I do not read OP in context of having been placed on a discliplinary suspension for a defined period ...rather he was placed on an investigative suspension without pay for an indefinite period and 5 days later he was offered a major downgrade or exit .
 

PayrollHRGuy

Senior Member
Since California law does not seem to address investigative suspension at all that I can find and the outcome of the investigation ended with the employer finding enough wrongdoing to demote the OP I'd be willing to bet the employer will consider it part of the discipline that ended with the demotion. How California UI rules would be interesting to find out.

I don't do California UI. In the states where I do and have been for almost two decades I have never once had a UI claimant not be disqualified as of the the day of the start of the suspension, if the suspension ended in discharge, or had one that was suspended pending investigation for an act that would have been disqualifying had the employee been discharged receive UI benefits for the suspension period.

Also, we don't know it was an indefinite period of time. The OP didn't say that. He did say that he was told of the outcome 5 days later which isn't excessive.
 
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cbg

I'm a Northern Girl
he was placed on an investigative suspension without pay for an indefinite period and 5 days later he was offered a major downgrade or exit

But if he accepts the downgrade he still has a job. And if he still has a job then he hasn't been fired.

I don't do CA unemployment either so I can't say for certain how the EDD will address a choice to refuse the demotion and end up without a job. But to say that he's already been fired, when he has the option of remaining employed, is, frankly, just plain stupid.

Why do you even bother answering employment law questions?
 
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