Std Disclaimer: barring backchannel arrangements & exchange of currency to the contrary, you are not my attorney. you are not offering me legal advice. if I should be in need of legal advice I will retain the services of an attorney who would represent me. I do not work for any city’s Dept of Parks & Recreation. Void where prohibited. Objects in the mirror may be closer than they appear. Etc
Suppose Norbert holds the postion of Manager at the Department of Parks & Recreation. The guy has a budget. He is responsible for 17 full-size and 8 pocket-size parks as the top decision-maker for policy planning & implementation for each of them. Folks report to him. He makes policy plans and generally runs things. He has a golden parachute clause that if his services are no longer required by Parks & Recreation he gets a hefty severance package.
Times change. New Honcho in Charge at the überbureau the City Division of Services and Resource Management, to whom Norbert reports, would like Norbert to vanish. This person, Torkins, also has a budget, and paying Norbert’s severance package and unemployment benefits strikes Torkins as abhorrent. Torkins would like Norbert to simply resign and slink away.
Please comment as best you understand applicable employment law on the following scenarios, if you would?
a) Torkins eliminates Norbert’s position. In the same conversation in which Torkins informs Norbert that his position is being eliminated and the various responsibilities farmed out to other people, Torkins tells Norbert that he can be rehired in a different role if he so chooses: picking up litter from the various parks and cleaning the public restrooms within each of them, while being overseen by a 19 year old summer intern who will verify that Norbert is doing this work to a satisfactory performance level. Norbert is fully qualified to perform that alternative function. Does Norbert have to choose between this rather humiliating replacement job as Option One or resigning and foregoing all benefits that would be forthcoming had he been laid off as Option Two?
b) Same scenario with a craftier Torkins reassuring Norbert that Norbert’s salary and job title as Manager of the Department of Parks & Recreation will remain untouched. Does Norbert have to choose between this rather humilating redefinition of what it means to be Manager of the Department of Parks & Recreation as Option One or resigning and foregoing all benefits that would be forthcoming had he been laid off as Option Two?
c) Same scenario wtih a yet craftier Torkins who never explicitly informs Norbert that his old position has been eliminated. It is now termed a restructuring of organizational job descriptions. Once again, does Norbert have to choose between this rather humilating redefinition of what it means to be Manager of the Department of Parks & Recreation as Option One or resigning and foregoing all benefits that would be forthcoming had he been laid off as Option Two?
Hey, I can do your disclaimer one better: I’m not even a lawyer! And I don’t even think all those years watching Law & Order will help me now.
From my understanding, each of those cases is called “constructive dismissal”. In other words, trying to piss someone off enough to quit, in order to not let them collect unemployment and/or contract-related benefits. In most (all?) states, it’s no different than if they actually fire that person, though a hearing (unemployment) or lawsuit (contract) may be necessary for an individual to get the money he/she has coming to them.
I’m not sure if this was on purpose, but you’ve complicated the hypothetical and left out important information by making the guy a civil servant. Civil servants are often unionized or protected by due process rights that a private employee would not have. Based on the apparent “contract” that grants the guy a “golden parachute” I’m assuming he’s terminable at-will.
Assuming he’s terminable at-will, and the only reason for termination was Torkins’s general dilike of Norbert or disagreement with policy decisions:
Termination. Torkin’s offer to rehire is relevant only to:1) Norbert’s duty to mitigate his damages, in the wrongful termination context (if he’s an at-will employee Norbert doesn’t have a wrongful termination case); 2) Norbert’s duty to seek suitable work in order to collect unemployment. The key term here is “suitable.” The offered work does not appear to be suitable, but he’d have to prove it wasn’t. http://www.uchelp.com/manual/refusal.htm If he’s got a golden parachute, his rights to unemployment benefits probably don’t matter much anyway.
Probably constructive termination. Again, if he’s an at-will employee, the fact that he’s been contstructively terminated puts him in no better a postion than if he’d been openly fired. Regarding unemployment, a substantial reduction in wages is an easier case. UCRC Online | Unemployment Compensation Review Commission (see section on breach of contract of hire), but if the change in job duties is substantial, he’d probably get benefits (subject to my point about the golden parachute) in some jurisdictions.