Do I have to take the demotion?

[HRZ]

I would think the employers position about a discharge is clouded by offer of employment in the same place just at a lower wage and responsibilities ...if the misconduct warranted a dismissal ..why offer him a job in same place ....

Apparently the supposed level of misconduct did not rise to a clean dismissal level , and the rule in question, which OP apparently followed, was immediately changed !

 

[PayrollHRGuy]

I would think the employers position about a discharge is clouded by offer of employment in the same place just at a lower wage and responsibilities ...if the misconduct warranted a dismissal ..why offer him a job in same place ....

Apparently the supposed level of misconduct did not rise to a clean dismissal level , and the rule in question, which OP apparently followed, was immediately changed !

It costs money to train people. It seems the OP made a mistake as a SUPERVISOR and as such they don't trust him to be a supervisor anymore. I see it regularly. Just because they didn't dismiss him doesn't mean that the action didn't rise to the level that would result in a disqualification under UI regs.

To go back to the OP's only original question, "Do I have any chance with unemployment insurance while I look for more equally paying work?"

The answer is sure, you have a chance.

 

[commentator]

Not to beat an issue to death here, but "the level that would result in a disqualification under UI regs" is not cut and dried. In this case as in all others, they'll look at a lot of factors such as warnings, company policies, etc. Usually if someone does something, even if it's misconduct, even if it's not a really bad thing, if the employer does not terminate for it immediately, it's not going to be disqualifying. If they want to take his job away but retain him as an employee (part time, no benefits, much less pay) that's still not getting rid of him by termination due to misconduct.

Though they put the employee on suspension for this situation, it appears they are saying, "Okay, you're fired from being a supervisor because of yada yada, but we don't mind you working for us, so we're going to offer you this part time lower status job!" That sort of defeats the whole idea of his being terminated from his former position for a valid misconduct reason. As I said, I will strongly suspect that unemployment will see this for what it is, a very flimsy excuse to get the employee to quit by adding an insulting job offer to the simple basic termination.

Not us, but the unemployment system will research the situation very thoroughly. I'd say he's probably on a good course to be approved.

 

[PayrollHRGuy]

I went back through the thread and can't find anywhere he said he hours would be reduced. He did say different hours but no mention in a reduction.

Also, he said the wages plus tips would be $20.00 as opposed to $25.00 per hour. That might be considered suitable work.

 

[Chyvan]

I am currently suspended and I am without pay.

You left out as to whether you knew on the date of suspension when you'd be going back to work. If not, then its an indefinite suspension, and under CA's rules, you were already fired. It would no longer be an issue of whether you quit because of the demotion. It makes life easier.

All that matters now is whether you were "fired" at the time you were fired for something provable that amounts to misconduct.

The new offer of work could be adjudicated under suitability rules, but probably not. A job offer from a place that fired you is rarely considered suitable. It's just an end run way to complicate you getting UI benefits.

If you quit the job, (by not accepting the demotion)

This is where she and I disagree. I think you were probably fired on the day of suspension because I doubt very much the employer said to you, "in 5 days, you come back to work and you can have this new, crappier job."

http://www.edd.ca.gov/UIBDG/Misconduct_MC_5.htm#DischargeDuringLeaveofAbsenceorTemporaryLayoff

"A layoff for an indefinite period . . . may sever the employer-employee relationship. In such cases there can be no leaving after the date of such a layoff."

Once you figure out what's really happening to you and what you want to do, then you need to file. You've probably already cost yourself a week of UI because you didn't understand about "suspensions."

 

[traviz28]

Thank you all for the fine support and responses.
To help clarify, when i was suspended, there was no return date, they only told me they would call me when they have conducted their investigation and have an answer.
I went ahead and filed for unemployment through CA EDD, it says it takes about two weeks to get a response. I suppose it's my decision now what is best for me and my family and which gamble will work the best. Do I take the lower paying position until I can find suitable work, or do I chance getting unemployment to focus my resume and job hunt?
Thanks again for all your support.

 

[cbg]

I would think the employers position about a discharge is clouded by offer of employment in the same place just at a lower wage and responsibilities ...if the misconduct warranted a dismissal ..why offer him a job in same place ....

Apparently the supposed level of misconduct did not rise to a clean dismissal level , and the rule in question, which OP apparently followed, was immediately changed !

But the thing is, the employer didn't fire him. YOU are the one who is insisting he's already been fired. The company has demoted him, not fired him. If he doesn't have a job at the end of this all, it's on him.

 

[HRZ]

Well I may not as cbg says know my way around CA labor law but I know some of the issues and questions .

1. IF you part company that triggers a payout of vested vacation 300 hrs at your rate about $25/hr or $ 7500
1.1 Vacation payout does not impact getting UC if you otherwise qualify .
1.2 If you stay aboard you may be stuck to use accrued time on gradual basis .

PAyrollHRGuy is on target about " suitable work " which is the operative word in CA UC issues ...an offer of a mere 20% pay cut might or might not come across as rejection of suitable work if such a bonafide offer was made . TIps count in CA UC math and $20 gets close to $25 ....my crystal ball is useless on that one . ( 43% and 25% less are in the literature .) Personally I think there is a big risk you could get scheduled for say 24 hrs a week and by then your options are less. IF for some reason you anticipate working 10 hrs a day..that changes a lot...CA computes OT daily .....your call......

 

[Chyvan]

PAyrollHRGuy is on target about " suitable work " which is the operative word in CA UC issues ...an offer of a mere 20% pay cut

http://www.edd.ca.gov/UIBDG/Voluntary_Quit_VQ_500.htm#Wages

"However, a pay decrease of 20% or more, taken alone, is a substantial reduction in pay to establish good cause for leaving work. . . ."

CA makes it pretty clear that 20% alone is enough to quit, and would therefore be unsuitable in the first weeks of a UI claim. In the OP's case, it's not just a pay cut. It's an entirely different job, different shift, possibly crazy schedule, tips that might be unreliable, the loss of $3,300 to the vacation hours AND a pay cut. Also, in a suitability determination, it has to be clearly suitable. If there is doubt, the claimant gets the benefit. Suitability issues are a lot less stressful to the "fired" claimant than trying to prove good cause to quit when you might have left with no written details on the "new" job because it was all verbal, and then to have an employer say, "oh, we never said that."

But the thing is, the employer didn't fire him. YOU are the one who is insisting he's already been fired.

No. The CA Benefit Determination Guide says that when the employer placed the OP on an unpaid suspension with no definite return to work date that the employer-employee relationship was severed.

http://www.edd.ca.gov/UIBDG/Total_and_Partial_Unemployment_TPU_46075.htm

"It is clear from these two cases cited above that when an employer lays off an employee and does not give the employee a definite date on which to report to work, the layoff is for an indefinite Period and there is a termination of the employment relationship within the meaning of Section 1265.5 of the UI Code."

 

[cbg]

Five days is not indefinite.

Chyvan, when you've known HRZ as long as I have (and it's a great deal longer than I've known you, just for comparison) you'll know that he has a great capacity for making up his own facts and then answering the questions based on his own interpretation.

 

[Chyvan]

there was no return date, they only told me they would call me when they have conducted their investigation

Five days is not indefinite.

If the employer had told the OP at the moment of suspension that it would be 5 days, then, yes, 5 days in not indefinite.

However, the employer did not tell the OP any such thing by his own telling. The fact that it took the employer 5 days doesn't mean anything nor would it have mattered if the employer took an hour. Once the employer sent the employee away, the separation was done.

Google indefinite www.edd.ca.gov/uibdg/

CA uses this principle to make all kinds of different determinations. It's a big deal.

One huge benefit is that the vacation pay won't count against the OP's UI. He can double dip. He'll get a wad of cash for his vacation, and collect his benefits. His employer gave him a gift of a situation.

 

[cbg]

Keep in mind that I am not making any statements about what the EDD will do. In either direction. The EDD can call it a firing for unemployment purposes if they choose to. I'm not as sure as you that it's quite as cookie-cutter as all that; if you really knew as much about unemployment as you pretend to, you would know that the decisions are rarely one-size-fits all and that there can be all kinds of random decisions that go against what it says in the book. Again, in both directions. I don't do CA unemployment now, but I have in the past. But this is not the place for that discussion. I frankly don't care if the poster gets UI or not and am not making any guesses one way or the other. It's all one to me either way.

I do, however, know very well that any time HRZ gets an answer right in a number of different areas it's by accident and by guess. Not all areas; he has certain strengths and there's even one area of law where I'd defer to him. But not employment law. I'd trust you in some areas before I'd trust him. And since you know that I don't trust you to know what day of the week it is, that tells you something.

However, the fact remains that for purposes not related to UI, such as resumes, references, and filling out application forms, the fact that the OP has the opt of remaining on the job if he chooses, means that it's not a firing.

Think it through, chyvan.

 

[HRZ]

IF viewed that your employment relationship was terminated in the beginning ....never mind if a new one was offered later ....you are required to have been paid all wages including unused vacation pay and penalities may be running as its well past 72 hrs ....

FINAL PAY
Employees who are discharged must be paid all wages due at the time of termination. (Labor Code § 201) “All wages” include any earned, but unused vacation pay. (Labor Code §227.3) There is no requirement under California law that an employer pay accrued sick leave upon termination. An employer must pay a discharged employee at the place of discharge. (Labor Code § 208)
An employee who does not have a written agreement for a definite period of employment and who quits without giving prior notice, must be paid his or her wages within 72 hours. If the employee gives at least 72 hours notice of his or her intention to quit, those wages must be paid at the time of quitting. An employee who quits must be paid at the office or agency of the employer in the county where the employee worked. An employee who quits without 72 hours notice may request that his or her final wage payment be mailed to a designated address. The date of mailing will be considered the date of payment. (Labor Code § 202)
An employer who willfully fails to pay any wages due an employee who is discharged or quits within the time frames provided under Labor Code § 201 or Labor Code § 202, may be assessed continuing wages as a penalty from the date the wages were due up to a maximum of 30 days. (Labor Code § 203) The penalty is calculated by multiplying the daily wage rate of the employee by 30 days. (Mamika v. Barca (1998) 68 Cal.App.4th 487) Penalties under Labor Code § 203 may be avoided if the employer can show that a good-faith dispute existed concerning whether any wages were due. A “good-faith” dispute means that the employer’s defense, based on law or fact, if successful, would preclude any recovery on part of the employee. (Title 8 California Code of Regulations § 13520)
Even if there is a dispute, the employer must pay, without requiring a release, whatever wages are due and not in dispute. If the employer fails to pay what is undisputed, the “good faith” defense will be defeated whatever the outcome of the disputed wages. (Labor Code § 206)