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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 37960
Experience:  Retired (mostly)
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Over a year after my work related injury my employer has decided

Resolved Question:

Over a year after my work related injury my employer has decided that my position can no longer accommodate my physical limitations and they have created a new position for me and cut my pay putting me in financial hardship. My only choices were to accept the new position or resign. Can they do this?
Submitted: 5 years ago.
Category: California Employment Law
Expert:  socrateaser replied 5 years ago.
Hello,

Can you give me an idea of what your physical limitations are, and what sort of accommodations your employer previously offered, but now refuses to provide?
Customer: replied 5 years ago.
I work with children with Autism as a lead tutor. The position requires the ability to run, stand, sit, stoop, crawl, kneel, reach, push, and lift a child weighing 50 pounds; normal visual, vocal & hearing acuity; use of a computer; ability to travel via automobile. I cannot stoop, crawl, kneel, run or climb. I was still able to work directly with kids and was able to sit for many things that I may have needed to kneel for and was not scheduled to work with kids who may have required running. I was basically able to do my typical job because there was only one child that I absolutely could not work with. They said that I did not meet the position requirements for my job so they were going to hire someone else and made me a new position which is very similar to what I do now except for working directly with kids and a cut in pay.
Expert:  socrateaser replied 5 years ago.
The issue for Americans with Disabilities Act purposes is whether or not you can perform the essential functions of the job, given reasonable accommodations -- offset against whether or not the employer will suffer an undue hardship if it must provide those accommodations (i.e., the accommodations required are unreasonable).

You have the choice of accepting the new position and simultaneously filing a charge with the Department of Fair Employment and Housing (DFEH). If you accept, you may want to provide a letter stating that your acceptance of the position is in no way implied as a waiver of your rights to seek legal recourse for unlawful discrimination.

The reason for this position is that the employer could argue that offering you the new job is actually a waiver of your right to sue, because otherwise, the employer would not have offered you the new job.

To file an unlawful discrimination charge, see this link.

Hope this helps.

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