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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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I was told on a conference call right before the holidays that

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I was told on a conference call right before the holidays that the company that for the last 7 years I have worked for was sold to another company. They also said that the new company would pay us until they could decide whether they would keep any of us or not. They now want us to go to a meeting to pick our brains on the accounts we have been working with and whatever else they feel like asking us to do. The reputation of the management for the new company is not good and I really feel like we're being taken advantage of until they don't need us anymore. They said within the next 90 days or less. They haven't made any offers and don't plan to until they want to if they offer anything at all. My question is do I have to submit to this or can I demand either an offer or a layoff from the company that was sold and qualify for unemployment until I can locater another job? I live in the state of California, the company that was sold is in Wisc. and the new company is in Indiana. All of us are feeling like they have no intention of hiring us and we'd like to go forward with our lives.

Thank you.

Jim
Jim,

Hello and thank you for entrusting me to answer your question. I am so sorry to hear about your difficult situation and can only imagine how stressful this situation must be.

Regretfully, an employee's rights in this circumstance are going to be extremely minimal. This is because absent an employment contract guaranteeing employment for a specified period of time, employment in the state of California is presumed to be "at will." More specifically, California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other." What this means is that an employer is free to terminate employees for any reason whatsoever, even a reason that is entirely unfair, unless the underlying motivation is discriminatory or otherwise in violation of California law.

At-will employees may be directed in any manner that that doe snot run expressly contrary to the law (i.e. an employer cannot direct an employee to rob a bank), even if this means they are being taken advantage of and having their "brains picked." There is nothing inherently illegal about that. While you are certainly free to refuse to attend this upcoming meeting and take a stand against your employer, they would be equally free to terminate you on this ground.

If your employer terminated you for failing to attend a meeting or cooperate with their analysis of your department, you would most likely be denied unemployment benefits on the ground that you were terminated for misconduct. UI benefits are available only to those employees who are found to be unemployed "through no fault of their own," and the EDD reasons that employees terminated for insubordination have made the conscious decision to set in motions events that led to their termination. This remains true even if the employee's layoff was imminent.

For these reasons, it would be extremely wise to cooperate with your employer. A failure to cooperate with your employer will likely result in termination. The only difference between termination and layoff is that if you are terminated for failing to cooperate, you will be denied unemployment. An employee cannot "demand" to be laid off, and so these are regtefully the only options.

I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Very best wishes and happy holidays to you.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 4 years ago.
Can they have us submit to drug testing?
Jim,

Thanks for your reply. In the state of California, an employer can only have active employees submit to drug testing on the basis of a reasonable suspicion of drug use (i.e. eratic behavior in the workplace). The only notable exception is randomized drug testing in a "safety sensitive" position. See Smith v. Fresno Irrigation District here: http://caselaw.findlaw.com/ca-court-of-appeal/1129642.html

"Safety sensitive" positions are generally regarded as positions in which an on-the-job error can result in substantial harm to co-workers, private parties, or the worker himself. In the Smith case referenced above, the court determined that the Plaintiff worked in a "safety sensitive" position and thus could not object to randomized drug tests because his position entailed him "[operating] power tools in close proximity to his fellow workers . . .[and operating] heavy equipment near them as well."

So, unless your position is "safety sensitive," drug testing would be illegal absent a particularized suspicion that you were using drugs.

Again, I sincerely hope that this information helps you and I wish you the best.

Kindest regards.