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I'm being pressured to take a lateral move into a position…

Hi. I'm being...

Hi. I'm being pressured to take a lateral move into a position I'm not qualified for, containers none of my current responsibilities, and I vehemently don't want. My current position has not been eliminated and the work is still there. My question is whether I can be fired for declining to m

Lawyer's Assistant: Have you discussed the termination with a manager or HR? Or with a lawyer?

Change jobs? ( this was not presented as a job offer)

Lawyer's Assistant: Are you an "at will" employee? Do you belong to a union?

At will

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Yes, please. If I decline and they then tell me my position has been eliminated, that leaves another person still there in the exact job. He is a green card holder, is it legal for them to let a citizen go and keep the green card holder, all else being equal?

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Answered in 5 minutes by:
3/21/2018
Legal Eagle
Legal Eagle, Lawyer
Category: Legal
Satisfied Customers: 10,162
Experience: Licensed to practice before state and federal court
Verified

Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating (click here for more info) so all that means is that you can count on me to help today. Because I want to provide you with the most accurate answer possible, do you mind if I take a moment to review your question?

Please keep in mind that our conversation does not include an attorney-client relationship and this is for general information purposes only.

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I'm sorry to hear about your situation. The answer to your question, unfortunately, is yes. An employer can terminate an employee for any reason and at any time, so long as it is not discriminatory in nature. This means they cannot terminate someone for the color of their skin or a disability, for example. In your case, if you decline, and they tell you that your position has been eliminated, then they have the right to do so. Sadly it will not matter what the other person's status is here in this country as U.S. citizens don't obtain higher protections than non-citizens. I'm very sorry.

What other questions did you have for me today that I can help you out with:-)?

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Customer reply replied 29 days ago
There are requirements and employer must meet before being able to hire a non-us citizen. They have to demonstrate that they were not able to find a citizen before they can hire someone with a green card. How would it then be legal for them to keep a green card holder and let a US citizen go for the exact same position. I operate as a senior level as compared to his junior level and have never been counseled for anything
Customer reply replied 29 days ago
Also I am not qualified for this position my resume doesn't state that I have any experience doing it
Customer reply replied 29 days ago
Are we still connected?

I understand; however, this is for the hiring of the person, not for determining whether to keep one person over another.

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USCIS has a mission to ensure that citizens are not being hired less than non-citizens so during the initial hiring phase, the employer has to show that their actions will not negatively affect the job opportunities, wages or working conditions of workers already residing here. In this case, if they have good cause to terminate, such as you not taking the new position, then they can do so. It stinks, but it's their rights under the law.

Do you really believe they would terminate you over this?

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Customer reply replied 29 days ago
I don't think they're playing that game. I really think they're try to fill a box on an org chart and none is volunteering. I've been a computer programmer for 20 years and bring a lot of experience to the company which they often acknowledge and thank me for. Even if I take this position it is a management role for which I am not qualified nor inclined to do. I feel strongly that it would be a mistake and I would not succeed in the new role
Customer reply replied 29 days ago
Clarify this as a reassignment or an offer so my thoughts are just to thank them for their confidence in me and respectfully ***** ***** opportunity. They may accept that but they're really trying to push hard and me taking this role
Customer reply replied 29 days ago
I've not said a word but if forced to take the the new position I'll be on my way out the door.
Customer reply replied 29 days ago
How does anybody win then
Customer reply replied 29 days ago
This?
Customer reply replied 29 days ago
I asked if there was any advice you could offer on how to word this or approach my insistence on staying in my current role?

I understand.

One little known, but very effective tool that lawyers use when there isn’t a law that they can rely on to support their position is called principled negotiation. All this means is that you are looking to get something done on the basis of principles, even if you can’t find a law to support you. It takes the anxiety out of dealing with the other side because you’re focused on the facts, not each other.

Here are some simple steps you can follow:

  1. Figure out what the other side’s interests are (saving money, saving time, etc.?);

  2. Think about what your interests are (saving money, saving time, etc.?);

  3. Come up with 2 to 3 reasonable and objective ways to solve the problem;

  4. Present it to the other side;

  5. If the other side rejects, ask them, “Is there a reason why you do not feel it is necessary to negotiate?”

Of course, these are just building blocks to get the other party to help solve the dispute. Believe me when I say that good lawyers use this technique all the time to keep things out of court. You’ll find that it is very effective even with the most stubborn of individuals.

So, you it may be wise to tell them that terminating you just means they would have to pay more money to train not just your new position, but the old position as well. If you have a friend or someone that could take over the job, refer them as well. Also, perhaps you could ask them for paid training to help ensure your success (which is tied to theirs as well).

What other questions did you have for me today that I can help you out with:-)?

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Customer reply replied 29 days ago
That is very helpful. The person that would remain if I leave my current job is not senior enough to make the projects deadline without help, and that will cost the company an immediate $3m in fees and same again for the next four. That speaks well to your point of risking the new and current projects.

I concur. I think that you and your employer have shared interests and if you treat them as if they're on the same side of the table and help them understand that your loss is their loss, then that could do wonders for you and help you stay in control of the situation.

Did you have any other questions for me today that I could help you with?

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Customer reply replied 29 days ago
I'm not so good with negotiations and am pretty transparent so I will follow your suggestions and pray for the best. It's not their concern but I have a mother in assisted living and most IT jobs here are in the next big city an hour away. It is critical I be able to stay near so I can make sure she's being well cared for. High stakes for me but also what keeps me from being can and collected in this new. Thank you for your help. If I have other questions in the next day or so, is there a way I can connect back with you specifically?

The pleasure is all mine! Negotiations are always difficult so you're not alone, trust me. I'll address you being able to come back below:

Unless you have additional questions, there’s just a few other things I’d like you to know before we wrap up this conversation:

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  4. Don’t forget, if you haven’t already, you can always sign up for a membership with Just Answer and start asking more questions for cheap.

  5. Don’t forget to tell your friends about justanswer.com!

Legal Eagle
Legal Eagle, Lawyer
Category: Legal
Satisfied Customers: 10,162
Experience: Licensed to practice before state and federal court
Verified
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Legal Eagle
Legal Eagle
Legal Eagle, Lawyer
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

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