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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 12479
Experience:  Significant experience in all areas of employment law.
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I worked start up company and have a Director of Nursing

Customer Question

I worked for a start up company and have a Director of Nursing position when the census was only 20 and now we are at 114. I was promised that the next evolution would be to hire an assistant. I've been pulled in different directions and was doing the job of many. I talked to my boss about it recently and was so emotional that I cried...I said " i cannot go on this way anymore". instead of giving me an assistant as promised, he offered me instead a position in the field where my role would be educating existing employees and newly hired individuals, providing in-services in different places w/ a title of being a community liaison. He talked to one of our employees to take my role. He always tries to convince me during our weekly meeting that this is where I'm good at and I would have time for my kids. He told me I am still the DON and that he won't change my salary. When I compared my previous job description to what he handed to me, I noticed that it excluded the statement that says I am responsible for the overall clinical services. I feel that the overall performance of my Department was the one that allowed the company to be successful just in the span of 1 1/2 yr. I am asian and most of my staffs are. I feel he probably think I am stupid not to pay attention to the details of what he wrote. I would like to seek for your advice on how to deal with him if he forces me to sign that new contract? I want to know what my rights are as a minority.
Submitted: 12 months ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 12 months ago.

Good evening and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I

The general rule is that employment in the state of CA is "at will" absent an express agreement to the contrary. At will employment can be terminated or modified for any reason not amounting to discrimination on the basis of a legally protected trait (race, religion, gender, etc.) or retaliation for engaging in certain forms of legally protected conduct (filing a wage claim, taking FMLA leave, etc.). It doesn't matter whether the basis for termination or modification is fair, reasonable or even true.

This means that you could have your job duties changed with our without your consent, regardless of whether you requested a change. The modification would only be illegal if you could prove that it was happening BECAUSE of a legally protected trait or activity, as defined above.

It is important to understand that simply being a minority does not make all adverse employment action against you illegal. It's only race discrimination if it's happening BECAUSE of your race. It's the motive that matters.

Here, your employer would no doubt respond to a race discrimination complaint by explaining that your change in job duties was a response to the issues you were having and your statement that you can't go on anymore. It doesn't matter whether the new position is what you thought it would be, all that matter is your employer being able to prove that they aren't doing this to you BECAUSE you are a minority, and given your prior statements and complaints, they would almost certainly have no trouble establishing this. And remember, if you can't establish that this is happening to you because of a legally protected trait or activity, your employer is free to change your job "at will," without regard to what you want or what is fair.

Of course, you are under no obligation to sign a contract with terms of employment that are unacceptable to you. If the terms are unacceptable, you can always attempt to negotiate. But be mindful of the relatively limited leverage that you have. As a long-term successful employee of this medical facility, you are no doubt valued, and your employer would not want to see you go. That gives you some leverage. But in terms of the legal exposure your employer faces if you refuse the new position, there probably isn't any. In short, this is a situation that really needs to be handled on a personal level rather than a legal one.

I hope that you find this information helpful. 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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.

* Disclaimer *

Just Answer is a venue for informational and educational purposes only. No attorney-client relationship is formed by these communications.

Expert:  Patrick, Esq. replied 12 months ago.

Hello again,

I just wanted to followup with you to make sure that you did not have any further questions or concerns. For some unknown reason, the experts are not always getting replies or ratings (which is how we get paid for our work) that the customer thinks have gone through. In your case I have not yet received either. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the site administrator.

In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue, if needed.

Very best wishes.