Employer closing store, threatening to fight unemployment claims

[slchanmo]

What is the name of your state (only U.S. law)? Pennsylvania

I work as a waiter in a restaurant. The other night at work, my boss announced he would be closing the restaurant, effective immediately (two days notice). We are currently fully staffed, and he offered all of the waitstaff new jobs at his other locations, which are also fully staffed, and therefore he does not need any more waitstaff. He offered me a position at a location in another state. His other restaurants are fully staffed, so he doesn't really have real jobs to offer us, but he threatened us that if we apply for unemployment, he will fight it because he technically offered us jobs at the other restaurants.

He is not giving us much time to work anything out - today is the restaurant's last day open, after he announced the closing two days ago. He is pressuring us to give him answers, but I have avoided doing so, just telling him I am still considering his offer. I suspect this is a ploy to get out of paying into unemployment.

How can we fight him on this and still receive unemployment? What do you think our chances will be? I will be looking for a new job, and hope not to be on unemployment for very long, but since we didn't receive much notice, I need some form of support until I can get started working somewhere else.

Thanks for your help.

 

[cbg]

Of course he is legally allowed to do that. He has an unconditional right to contest, just as you have the unconditional right to file and whichever one of you has the decision go against you has an unconditional right to appeal. What's more, it is by no means certain that he'll lose. He did offer you other work, which you turned down. In some circumstances that would be enough for you to be disqualified for benefits whether he contested or not. A half hour commute is nothing in some parts of the country; I wouldn't know what to do with all my time if I had a commute as short as half an hour. I will leave it to Commentator to say whether going from down the street to a half hour commute is considered a significant enough difference to allow you to collect, but your employer is not doing anything illegal, immoral, unethical, or wrong.

 

[slchanmo]

Of course he is legally allowed to do that. He has an unconditional right to contest, just as you have the unconditional right to file and whichever one of you has the decision go against you has an unconditional right to appeal. What's more, it is by no means certain that he'll lose. He did offer you other work, which you turned down. In some circumstances that would be enough for you to be disqualified for benefits whether he contested or not. A half hour commute is nothing in some parts of the country; I wouldn't know what to do with all my time if I had a commute as short as half an hour. I will leave it to Commentator to say whether going from down the street to a half hour commute is considered a significant enough difference to allow you to collect, but your employer is not doing anything illegal, immoral, unethical, or wrong.

Thank you for your reply. You may have misunderstood some of my questions. I did not turn down the work he offered me. I am still considering the offer, but the reality is that there is no real job offer to accept. His other restaurants are fully staffed, so there are no available positions. He is going to claim that he offered everyone jobs, when in reality, he has no jobs to offer. That is my concern. I can accept the job, but he will probably have me come for a few days, and then just start telling me not to come in because they are overstaffed. The half hour commute has nothing to do with my claim. I would gladly travel a half hour for a real job. Thanks again for your quick response.

 

[cbg]

If there truly are no jobs and he stops putting you on the schedule, you will be able to get unemployment at that time.

 

[slchanmo]

If there truly are no jobs and he stops putting you on the schedule, you will be able to get unemployment at that time.

Thank you, cbg. Your advice is to take the supposed job at the other restaurant and then file for partial unemployment after my hours are decreased from the schedule?

 

[cbg]

I think that's your best bet. It is by no means certain that you will be approved for UI if you turn down the job, and who knows? It might actually turn into something. If it doesn't, you are FAR more likely to be approved because he stops scheduling you than if you turn down what on surface appears to be available work.

 

[LeeHarveyBlotto]

but your employer is not doing anything illegal, immoral, unethical, or wrong.

A value judgement with which one could legitimately disagree on anything but illegal.

 

[cbg]

If you have an issue with an employer fighting the unemployment claim of an employee who has been offered a job and turned it down, that is your prerogative.

 

[LeeHarveyBlotto]

If you have an issue with an employer fighting the unemployment claim of an employee who has been offered a job and turned it down, that is your prerogative.

If the job offer seems to be a ruse purely intended to avoid paying a legitimately earned benefit, and you have no issue with that, that is your prerogative (sic).

 

[cbg]

At this point, we have nothing but the OP's belief that the job is not a valid offer. The OP also believed that the employer could not legally contest the unemployment, so I don't think we can legitimately assume that the employee's beliefs are 100% valid.

I've been through closings and merges and know that there are always people who quit unexpectedly or who for one reason or another do not remain. Just because the OP believes the new place is fully staffed and that any job offers therefore must be false, does not mean that is actually the case.

 

[slchanmo]

At this point, we have nothing but the OP's belief that the job is not a valid offer. The OP also believed that the employer could not legally contest the unemployment, so I don't think we can legitimately assume that the employee's beliefs are 100% valid.

I've been through closings and merges and know that there are always people who quit unexpectedly or who for one reason or another do not remain. Just because the OP believes the new place is fully staffed and that any job offers therefore must be false, does not mean that is actually the case.

To both cbg and LeeHarveyBlotto, I appreciate your discussion on this thread. Thank you for taking the time to read and comment. LeeHarveyBlotto, thank you for recognizing that the job offer is a ruse. Cbg, you've been very helpful in explaining some things with me. I never believed that the employer could not contest - rather, I was wondering what my chances of winning would be when he did contest. The restaurants are, in fact, fully staffed, and the employer admits it, but he will "fit us in." Of course none of this is in writing, and cannot be proven to UE, thus my concern. Thank you all for your advice, and your time. I will take your thoughts into consideration as I move forward.

Hopefully, I will not even need to apply for unemployment, as I've several applications in elsewhere already. Wish me luck.

I wish both of you the best of luck as well - please be kind to one another.

 

[LeeHarveyBlotto]

At this point, we have nothing but the OP's belief that the job is not a valid offer.

Correct, therefore to make a definitive claim that the employer did nothing wrong ethically must either 1) assume the OP is incorrect which we in fact do not know, or 2) that one is OK with the employer's action assuming the OP is indeed correct. I sincerely hope it's the former, as the latter sets a pretty low bar for ethical behavior.

 

[cbg]

I guess we'll have to agree to disagree then, because I see nothing to suggest that the employer's offer is a ruse of any kind. And even if it is, while it might affect the ethics and morality question, it would not affect the legality question; nor would it change the eligibility of the OP for unemployment benefits.

 

[commentator]

Your employer is closing the restaurant. You are out of work through no fault of your own. I have heard a many of an employer tell employees they have no choice, that they will not qualify for unemployment benefits, that they might as well not even file, etc etc etc. Fortunately, he does not get to say, has no legal business trying to keep you from filing a claim.

And really, you need to file for benefits. Even if you felt you didn't have "much" of a chance, at least let the professionals make that decision for you, never take the word of your former employer or someone on a web site or someone you know. File that claim as soon as the job ends. Tell the unemployment system exactly what has been said, exactly what your employer told you in regard to your employment at the other site.

Has he said it is the same pay, the same number of hours? Has he made a real formal offer of a job, or has he just said, "I want all of you to come and work at my restaurant in So and So." If that's what he said, that's not an individual actual job offer anyway. What the system will be interested in is if he said, "slchanmo, I want you to come and work at the SO and So restaurant. You'll be starting Wednesday, you'll be paid the same as here, and you'll be working 35 hours a week," that's a legitimate actual job offer. And then a decision has to be made by the unemployment office, AFTER you have filed a claim and been approved, because the restaurant closed, as to whether you are likely to lose benefits after having been offered this work.

It has to be a reasonably equivalent job, in hours and pay and commuting distance, to what you had before. It has to be a genuine formal job offer, and if there is no chance of your getting the hours or pay, no legitimate opening exists, you have knowledge of this, (and be sure to tell them how you might know this) then it is not going to disqualify you from receiving benefits.


Of course, you will not limit yourself as to days, hours and shifts, or say you refused the work because it is too far away if it is a reasonable distance. But I saw that it is in another state, not sure it is an equivalent commute, which very well may not be considered a reasonable job offer. And that is what it has to be, a reasonable, sincere, good faith offer of other employment at another work site. Something you wouldn't mind jumping right on if it were to work out.

It is possible, from the circumstances that you describe, that your employer might put you on at the other restaurant, which you know to be fully staffed, let you work a couple of shifts, and then find some reason to fire you. Many times employers don't really understand that firing you will not preclude your getting benefits, and they think they're being very clever. If you try out this new job location, with a longer commute, and discover that you are not getting any hours, it is really a lot further to job, and they're treating you very poorly, and you quit, you will have very little chance of getting approved for unemployment. That may be what they're hoping will happen.

I've been in the business for many years, and I have seen employers do all sorts of dealing to try to prevent their employees from receiving unemployment benefits after closures and lay offs. I had one employer who actually decided to run a bus from his old business to the location of the new business, about an hour's commute away, and try to keep all his former employees from receiving benefits if they didn't want to ride the bus! Incidentally, this was NOT considered an equivalent job. Some wanted it, some didn't. Those who didn't got to continue their unemployment.

The law does not keep employers from appealing unemployment claims, but the agency is fully aware of the devious practices some employers use to try to evade their unemployment tax responsibilities. One thing the agency tries not to do is ask the employee to worsen their circumstances. If the job offer at the other restaurant is a legitimate one, and the commute is tolerable, the OP might decide she would be better off to go to work there, after filing the claim for unemployment. Or might not. It's a personal and individual decision.

Unemployment benefits are usually less money than you can make working, and they do not last long. It's tough to get by on less money and try to find another job. But it is a decision she will need to make, and the unemployment office can help her and will give her guidance, rather than penalizing her. File the claim

So no, my advice is probably not to go on and take the other job and work there. If they are so overstaffed they don't really have openings for you, and they can't give you enough hours to make it worth the commute to get there, that's not an equivalent job. Certainly, before you take the other job, file your claim for unemployment and discuss with them whether or not the job offer you have received is going to be disqualifying.

 

[commentator]

I guess we'll have to agree to disagree then, because I see nothing to suggest that the employer's offer is a ruse of any kind. And even if it is, while it might affect the ethics and morality question, it would not affect the legality question; nor would it change the eligibility of the OP for unemployment benefits.

The issue is going to be whether it is a good faith offer of equivalent work, or a dodge to discourage the employees from signing up on unemployment. And that is not for anyone but the employment office to determine.

But first the former employee needs to sign up for benefits. The benefits will be approved or denied on one thing only, the reason the person is no longer employed. The restaurant closed. End of story. The employee is approved for benefits based on the reason for leaving last employment. Now, with the first filing for a week of benefits, the issue will come up as to whether the employee is able to be paid for that week because they have/have not refused a suitable offer of work. That's when the whole "suitable work" and "availability" issues will come up. So you cannot stop your employees from being approved for benefits by saying, "I have a job for you at the other restaurant over in New Jersey. Come on down!" They have to be interviewed and offered a suitable job individually, and the particular claimant's situation has to be reviewed by the unemployment agency as to whether they have refused a suitable offer of work.

OP, DO NOT wait a minute to sign up for unemployment because you may get another job real soon. As soon as you are out of work, sign up right away. The other job may not work out, and in the best of cases it takes several weeks to get unemployment benefits started. Do it before you have begun your job search, and then hopefully you'll go right to work elsewhere and be able to move on. But better safe than sorry, because they cannot back date your claim, no matter how long you have been out of work. You can't start getting benefits until you sign up.