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Brandon, Esq.
Brandon, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 1836
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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Lets say that your employer rewrites your job description

Customer Question

Let's say that your employer rewrites your job description and gives it a different title than the one you currently have and asks you to sign your name to that job description/title are they effectively eliminating your position and asking to hire you in a different one or is that just sort of a lateral move with no legal ramifications?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Brandon, Esq. replied 1 year ago.

Employment-LawExpert :

Hello and thank you for your question today

Employment-LawExpert :

Are you online with me?

Customer:

yes

Employment-LawExpert :

Welcome to the chat

Employment-LawExpert :

The question comes down to what the material functions of the job actually are.

Customer:

thank you

Employment-LawExpert :

So, if the pay, hours, location, or essential functions of the job differ, then they would be constructively terminating the original position.

Employment-LawExpert :

If you were a for cause employee, or were part of a union, this would be considered wrongful termination.

Customer:

what does for cause mean?

Employment-LawExpert :

For cause means that you may only be terminated for a particular reason.

Employment-LawExpert :

It would be in your employment contract

Employment-LawExpert :

The default in Florida is that you are an at will employee. However, if you have a contract that states "you have a job as long as you do good work" would technically be a for cause employee and have a cause of action against the employer

Employment-LawExpert :

Or if it said you may only be terminated for cause

Employment-LawExpert :

or for reasons x, y, or z

Employment-LawExpert :

Additionally, if they were doing this as a form of harassment or discrimination based on a protected category, you would also have a cause of action.

Customer:

My situation is that my boss was let go and the other person in my department left and the majority of work on my shoulders. For about the last 7 months I have been doing much more than my job description entails. My new boss, said he had been waiting to see how this "new" job formed and what it was before changing anything about my title/job description. Today, he handed me a new job description and title asking me to sign it.

Customer:

I haev gone through several job transition in the last 10 years there and never had to sign a new job description/title.

Customer:

In my view, they are basically dissolving the job I currently have and making a new job that they want me to transition into.

Employment-LawExpert :

That definitely sounds like what they are doing. As to why the need you to sign it, it can be for a number of reasons. First, it avoids any liability if you agree and you are a for cause employee or are part of a union. Second, If you were to quit now, you would likely still receive unemployment. Once you sign the new job description, however, that is the job you are agreeing to do. You are agreeing to the new terms of employment and thus would not be able to receive unemployment if you sign and then quit after

Customer:

Right, I have been quite unhappy there lately and have been thinking about leaving. If I don't sign and ask to stay at my current job, which I know won't exist am I quitting or will they be letting me go? That's my main question.

Customer:

I'd rather haven them let me go so I can get some sort of package than just quit.

Employment-LawExpert :

No one can force you to quit. If you refuse to sign, then they would be forced to fire you. If they fire you you would receive unemployment.

Employment-LawExpert :

As for a severance package, that is company specific

Customer:

I talked to that HR person about it and she seems to think that because they have this other job that they're offering me, if I decide not to sign I am in affect quitting.

Employment-LawExpert :

Then put something in writing stating that you are not quitting. Send it via email or via certified letter with return receipt requested. It can state that you are not quitting and look forward to staying in the same job you had previously worked.

Employment-LawExpert :

Again, I cannot stress enough that no one can force you to resign.

Employment-LawExpert :

No matter what they tell you

Customer:

That makes sense. I didn't feel right about how this was happening.

Customer:

I emailed the question to my boss and then later to HR and neither time did they respond in writing but instead wanted to talk face to face.

Employment-LawExpert :

Unfortunately, that is the nature of things like this. Then, they can say that these conversations never happened and try to deny you unemployment. If you had something in writing, you would be guaranteed what you are legally entitled to

Customer:

I'm not %100 percent sure that they were trying to skirt that, but I was definitely thinking that they may have been.

Employment-LawExpert :

More often than not they are. Unless of course you were a for cause employee, then they might be trying to do more than that.

Customer:

Is there a way to find out if I'm a for cause emplyee?

Employment-LawExpert :

You would need to look at your employment contract

Employment-LawExpert :

It would say that you can only be fired if ... or it would say you have a job as long as ..... or something to that effect

Customer:

Would that be the terminology or what would I be looking for?

Customer:

I see

Employment-LawExpert :

It could also just say for cause

Employment-LawExpert :

but you are looking for the general concept

Employment-LawExpert :

some promise made to you stating you can only be fired if...

Customer:

So, just to be clear. If I refuse to sign the new job that is not an act of quitting even if I know that my current job is going to be dissolved?

Employment-LawExpert :

As long as there are material differences between the new job and old

Customer:

HR kept telling me that parts of my current job are going to be in this new job so it's just sort of a move from one step to another.

Customer:

I would be losing some things that don't exist anymore anyway and adding new responsibilities

Employment-LawExpert :

Would you say the main functions of your job would be exactly the same or drastically different

Customer:

my current title is production engineer and the new title is studio/building coordinator

Customer:

I would say quite different.

Employment-LawExpert :

Then yes, if you refuse to sign the new job (and send a letter or email stating you are not quitting) then you would be getting fired or laid off and would absolutely be guaranteed unemployment.

Customer:

I guess I'd just need to ensure that they're different enough.

Customer:

If your boss was fired and so instead of him telling you what to do you had to meet with the other departments in order to know what needs to be done. now, you're scheduling crew to come in and working as a manager without the specific title.

Customer:

Is that too similar?

Employment-LawExpert :

That would be similar, because you are still doing the same job you just need to find out what to do in a different way.

Employment-LawExpert :

What you are actually doing on a day to day basis would actually have to be different

Employment-LawExpert :

Unless that constitutes the majority of your day

Customer:

I didn't go to meetings and now I have to go to a lot of meetings

Employment-LawExpert :

How much of your day constitutes meetings now

Customer:

it depends on the day and what events are upcoming.

Customer:

I'll take a look at my current job description and see how much it differs from this new one because many of the things I do now that are in the current one I don't think are listed in my old one

Employment-LawExpert :

That definitely sounds like a plan.

Customer:

I think if you put the two side by side they would be quite different. It's just that I've been doing all of the new things for the last 7 months since they terminated my boss and my coworker moved on.

Employment-LawExpert :

That does make things slightly more difficult. So you are saying your job after signing would not really change in any way, only the actual signature would change is that correct?

Employment-LawExpert :

But it would change from your job seven months ago correct?

Employment-LawExpert :

Because agreeing to continued employment with different working conditions can be seen as consent to those conditions

Customer:

That's what I'm saying. My new boss, was waiting to see what this job would look like after a while before writing a job description for it.

Customer:

Well, I didn't necessarily agree to continued employment it was more of a situation where things still have to get done and I was pretty much the only person left who knew how to do any of it and quitting right then didn't seem like an attractive solution.

Customer:

I asked about the new situation I found myself in but my boss kept pushing things back.

Employment-LawExpert :

Unfortunately, however, you were not doing this for a month or two, but for seven months.

Employment-LawExpert :

So, they technically constructively terminated you seven months ago

Employment-LawExpert :

You then consented to that termination at some point after that (more than a few weeks but less than a few months)

Customer:

Just by not quitting I consented to the the job change?

Employment-LawExpert :

unfortunately, yes.

Customer:

That is unfortunate

Employment-LawExpert :

That being said, there may be something you can still do. You may want to consider requesting an increase in pay given the "new" duties. If you demand such an increase they may have no choice but to fire you instead of acquiesce to your demands.

Customer:

I have asked about that, because there hasn't been an increase, and they say that right now there is no way they can compensate me for the additional duties.

Employment-LawExpert :

Instead of asking, however, you can state that you are not quitting your job, but if they want you to sign the new job duties then they "must" give you a raise. This would not be considered misconduct and you would be given unemployment as long as you were terminated either because the old position ceased to exist, or because they physically fire you

Employment-LawExpert :

I know it seems like a roundabout way, but because you have already agreed to the new duties having done them for the last seven months, technically, that would be enough to be denied unemployment.

Employment-LawExpert :

Does that make sense?

Customer:

Yes

Employment-LawExpert :

Does that fully answer your question today?

Customer:

So telling them that I won't quit and won't sign unless there's a pay increase would force them to let me go or agree to my demand?

Employment-LawExpert :

basically yes, because remember that they cannot force you to resign

Customer:

It would be different than just saying that I'm not going to sign

Employment-LawExpert :

because they will just say that you quit

Employment-LawExpert :

and then it will be your word against theirs

Employment-LawExpert :

so if you put that in writing, they are left with the decision of what to do

Customer:

Could they possibly just not do anything then and basically act like it never heppened?

Customer:

take back the "offer" and try to leave things like they were before?

Employment-LawExpert :

Yes they could decide to do that

Customer:

ok

Customer:

just trying to understand all of the possibilities

Employment-LawExpert :

Not a problem. That is why I am here

Customer:

and trying to figure out if I leave, how I can put myself in the best possible situation

Employment-LawExpert :

It sounds like you are the only one in the company who can do what you do

Employment-LawExpert :

Thus, in negotiation, it would likely be in your best interest to request more money.

Employment-LawExpert :

Don't let them tell you there isn't any

Employment-LawExpert :

Ask what your boss was making before

Customer:

It's a PBS tv station

Customer:

I'm the only person left who knows how to run the actual studio

Employment-LawExpert :

Then it sounds like you have a lot of bargaining power

Customer:

I know, that's why I'm so confused on why they wouldn't be more willing to try to keep me on board

Customer:

Unless they're just bluffing real hard

Employment-LawExpert :

It happens a lot

Employment-LawExpert :

They make you feel that you are not worth it because then they can pay you less.

Employment-LawExpert :

If you already know you don't want to work there under the current situation, you have the most leverage

Customer:

Very true

Customer:

I do a lot of work on the side which I believe could sustain me

Customer:

So, the unemployment isn't what I'd be seeking but I'd like to get some sort of severence

Employment-LawExpert :

You will also want to look in your employment agreement the terms of severance

Customer:

Right. I have a bit of research to do now

Customer:

So, You're saying my best play is to write in an email that I won't quit my current job but I won't sign for the new one without a pay raise?

Employment-LawExpert :

Any attorney will tell you that in any negotiation, preparation is key. Know what you are entitled to, know what your leverage is, then come out swinging.

Employment-LawExpert :

I can't create an attorney client relationship with you and tell you exactly what to do, all I can do is tell you the options you may have in this situation and the legal ramifications for those options.

Employment-LawExpert :

But it sounds to me like you have a lot of leverage to get fired, or to get a raise

Customer:

Ok

Customer:

Legally speaking, getting fired and getting let go are the dame thing right?

Customer:

*same

Employment-LawExpert :

Yes, because then you would be granted unemployment benefits

Employment-LawExpert :

As long as you are not fired for "misconduct"

Employment-LawExpert :

and refusing to sign would not be considered misconduct

Customer:

Right

Customer:

I think that answers all of my questions.

Employment-LawExpert :

I am glad that I could get you pointed in the right direction. If you have any other questions, please do not hesitate to ask. Otherwise, please do not forget to provide a positive rating so that I may receive credit for assisting you this evening.

Employment-LawExpert :

Have a wonderful rest of your day.

Customer:

Thank you. You too. I will definitely give you a positive rating. This was very helpful.

Employment-LawExpert :

Thank you very much.

Brandon, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 1836
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and other Employment Law Specialists are ready to help you

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