After returning from an uprotected medical leave (not FMLA), do I have to accept a lessor position?

I've been out for 4mo. on unprotected medical leave (not FMLA) and have now been released. However, they could not hold my outside sales position. They do not have a similar position available for me in the company. They do have lowering paying office/clerical positions they are asking if I would like to do. Do I have to accept one of these positions? If I don't, does that mean I am quitting or they are letting me go? Would I be able to collect unemployment until I found another Sales job?

1 answer  |  asked Jul 16, 2013 10:09 AM [EST]  |  applies to California

Answers (1)

Marilynn Mika Spencer
First, make sure it is correct that there is no comparable job available. Just because an employer says one is not does not mean that is so. Also, consider whether your leave was protected by laws prohibiting disability discrimination (the ADA and the Fair Employment and Housing Act). It may be that the law required the employer to hold that job for you. If so, it may be retaliation to give you a lesser job. Please look at my Avvo guide on the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment.; Please look at my Avvo guide to the differences between the ADA and California's more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true..

Also, if your leave was related in any way to a workplace injury, you may have additional rights.

If none of that applies, then you should know what the unemployment laws say about pay decreases. Employees who voluntarily quit their jobs due to a decrease in pay are eligible for unemployment benefits if the pay cut was large enough. In Bunny’s Waffle Shop v. California Employment Commission (1944), 24 C. 2d 735, 151 P. 2d 224, the court found an employee who suffered a 25 per cent pay cut was eligible for benefits. According to the Unemployment Insurance Appeals Board (UIAB), an employee who quits due to pay reduction of 20.96 per cent is eligible (UIAB Precedent Benefit Decision No. P-B-124). However, a pay decrease of approximately 11.2 per cent is not sufficient BY ITSELF to merit unemployment benefits (P-B-88).

According to the UIAB, a 15.4 per cent and a 17.5 per cent wage reduction MIGHT BE good cause to quit (and therefore allow unemployment benefits) if there are other factors (P-B-127). If the pay cut is due to a transfer, the UIAB will consider: (1) The comparative skills of the two jobs; (2) Whether the employee had ever worked in the department to which he was being transferred; (3) The length of time he had worked in the job from which he was being transferred; and (4) Whether the employee had a reasonable belief that he would be recalled to the job from which he was being transferred in a reasonably short period of time (P-B-127).

In UIAB P-B-88, the UIAB stated “A review of our decisions makes it apparent that no justification exists for any presumed rule of thumb that a reduction in wages of ten percent is not good cause for leaving work but anything over ten percent is good cause without reference to the other factors presented in the particular case." In that decision, the UIAB listed some of the factors other than wage reduction which bear upon decisions under various circumstances:
1. The claimant’s prospects for securing other work at a wage commensurate with his prior earnings;
2. Whether the claimant was aware of the labor market as it affected him;
3. The comparative skills required;
4. Substantial prospects of other employment based upon objective facts known at the time of election;
5. The distance and cost of commuting;
6. Loss of seniority and recall rights;
7. Opportunities for advancement in the lower classification.

You can find much more information about resigning due to a pay decrease on the Employment Development Department web site here:http://www.edd.ca.gov/uibdg/Voluntary_Quit_VQ_500.htm.

posted by Marilynn Mika Spencer  |  Jul 16, 2013 10:29 AM [EST]

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