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How can an employer legally demote an employee? Do they have to have documented evidence of poor performance?
Optional Information: marlton, New JerseyAlready Tried: Researched online.
Dear Marlton, New Jersey:
Does your company have an employment manual, or is the employee a member of a union?
We don't have an employee manual and we are not union.I work in retail. But I have never been written up and never had a one on one with my manager to tell me I was weak in any areas. We are getting reviewed next week and if I get a bad review I am not signing it.I read online that if they have nothing documented they could risk litigation or if I quit I could claim "constructive discharge" and possibly get unemployment and possibly sue.
New Jersey is an employment "At Will" state. That means that any person can be terminated at any time for any reason that is not discriminatory or against the law.
A reason that is discriminatory would be, for example, based on race, religion or national origin. The Equal Employment Opportunity Commission (EEOC) has details on that, if you need to refer to it. Here is the website: http://www.eeoc.gov/.
A reason that is against the law would be, for example, terminating an employee for refusing to illegally disposing of hazardous waste.
In an at will employment state, an employer can demote an employee, but again, for reasons that are not discriminatory or against the law. Manufacturing, or creating, a reason to demote an employee could be considered against the law.
That being said, if a Demotion results in a significant change in income or in working conditions - for example, you are demoted and would have to drive to a new location, far from your house, and couldn't do so -- that could be considered a constructive discharge that would entitle you to collect unemployment benefits.
The New Jersey Department of Labor and Workforce Development is here: http://lwd.dol.state.nj.us/labor/ui/ui_index.html. This government agency could give you guidance on whether or not a demotion constitutes a constructive discharge before a decision is made to leave your employment.
Good luck.
Lawyer
15 Years Litigation Experience