Demotion an end run to hide wage theft?

[UncleJoshie]

My friend has been an outstanding and loyal employee of her company for over a decade, usually working 10-20 hours of uncompensated OT a week. Recently her Dept had something go wrong and her boss wanted to dock her pay as punishment but was told that wasn't legal, so instead she's been demoted to 4 days a week and a 20% salary decrease. Is this legal? Does she have any recourse?

 

[quincy]

My friend has been an outstanding and loyal employee of her company for over a decade, usually working 10-20 hours of uncompensated OT a week. Recently her Dept had something go wrong and her boss wanted to dock her pay as punishment but was told that wasn't legal, so instead she's been demoted to 4 days a week and a 20% salary decrease. Is this legal? Does she have any recourse?

The name of your friend's state is what ... and why isn't your friend posting for herself?

 

[UncleJoshie]

New York

And I just took it upon myself to post.

 

[Zigner]

In the US, changing her schedule is perfectly legal, but not paying for all hours worked is NOT legal.

ETA: Unless, of course, your friend is a bonafide exempt employee. But, for a bonafide exempt employee, it's not called O/T...it's simply called "hours" and she IS compensated for them.

 

[Chyvan]

Does she have any recourse?

If she hasn't accepted the change, can prove she did something to get her employer to leave things alone, and what she did to cause the reduction isn't misconduct, she can treat it as a firing and a refusal of the "new" job and collect unemployment.

It might make sense for her to do this depending on what she earns. The reduction of 1 day a week is a 20% reduction to her hours, and the 20% reduction to her pay looks a lot like a 40% reduction overall. Then when you factor in 7.65% for social security that you don't pay on a UI check, she just might find that she makes the same collecting UI for the next 26 weeks and getting to sleep in while looking for a new job.

 

[cbg]

And she just might not.

 

[UncleJoshie]

And she just might not.

What do you mean, CBG?

 

[cbg]

I mean that I do not agree with chyvan that she's going to end up with a 26 week paid vacation, making the same amount of money on UI that she is now. I'm not 100% convinced that she'll even qualify for UI if she refuses the change.

BTW, the current maximum UI benefit in NY is $420 a week and there is no guarantee that EVEN IF she qualifies for UI that she will get the maximum. Chyvan is very good at suggesting people refuse job changes and get fired, but she's not the one who will be left without income if UI is denied. Nor does she consider that while the job market has improved, it is not yet good enough to be certain of having found a new job before UI runs out.

Rather, before making any drastic decisions, your friend should google and read about NY's Shared Work program and see if her circumstances fit it.

And of course, if she's already worked even a single day at the new schedule, everything chyvan said is moot.

 

[Chyvan]

NY's Shared Work program and see if her circumstances fit it.

She won't. It needs to be initiated by the employer, and I doubt they're going to be doing her any favors.

if she's already worked even a single day at the new schedule, everything chyvan said is moot.

That's not always true. Depending on circumstances, notice, what you did to complain, the response, you have about as long as it takes to get your next check.

There's plenty of people that get told late on a Friday that starting on Monday, things are going to change, and those people are allowed to make the effort to get things fixed, but they can't hang out very long. Also, it's verbal. So going into a UI situation, and the employer can say, "we never said that," in regards to the reduced hours and pay cut. Working until the issuance of the next check gives you proof that they employer did exactly what they said they were going to do.

Now, if the employer issues a ton of memos, and there was plenty of notice, and you tried to get things put back the way they were, then yeah, you better not work that first minute when the new terms and conditions go into effect.

 

[cbg]

And I still think you are much too prone to advising people to put themselves into a situation where they are likely to end up with no job and no income, because you like to fancy yourself an expert. Even though you have admitted elsewhere that you have no qualifications as such.

Your post here is all based on if's. Not on facts.

 

[commentator]

It also needs to be taken into consideration that if this person is living close in any sense of the word, in that going without even a few weeks pay might really upset the applecart of her life, then quitting and filing a claim for unemployment is not a very good option. It is not nearly so simple and cut and dried as "you need to quit and can collect unemployment." Even if the person is going to be approved, which is by no means guaranteed in these circumstances, it will only be after, in the very best case scenario, six to eight weeks of wrangling back and forth without any money coming in whatsoever. When and if she is approved, yes, she would be backpaid for the weeks that she had certified for since filing, but unemployment is likely going to be less money a week than they were making working, even at the reduced hours and the reduced pay. And after a certain number of weeks, max six months, it will come to a screeching halt, regardless of whether the person has found a new job or not.

I'm much more a fan of looking for another job before you leave the one you've got, even though you have been punished by a reduction in hours and pay. And as it has been pointed out, once you have worked at the new job, with the understanding that you are receiving reduced hours and reduced pay, this is considered accepting the terms of employment offered by the employer. So if you then quit and file a claim for unemployment, your chances of being approved for benefits grows even smaller.

 

[Chyvan]

And I still think you are much too prone to advising people to put themselves into a situation where they are likely to end up with no job and no income,

You do the same thing when you tell people they just have to take it, and don't have a choice. Seriously, you've got one heck of a commute that you've admitted to. Do you honestly think you'd be inclined to work 6-hours per day, and take a 20% cut to your hourly wage? The economics just aren't there.

Also, then let's pretend you did accept it. What's your tolerance before you get so upset at the littlest thing, and then end up walking out because the job's not worth it anymore. Then you end up with no job, and no UI, when you had you quit at the first sign that things were going bad, your odds of getting UI were heck of a lot better.

I lived it, so I know what I'm talking about. Once the adverse changes started, they just kept right on coming until the employer went too far.

 

[cbg]

At least my way, they're still able to pay their bills. It would be one thing if you could guarantee them a win with unemployment, but you can't do that. No one can. So to advise people to quit, or deliberately put themselves into a position that they'll get fired, when you aren't the one who's risking their livelihood, is irresponsible at best.

Please do not pretend that you know my circumstances beyond what I have posted here. You're hardly the first person to prevail in a UI appeal, even a hard-fought one, but doing so does not gift you with prophecy or even give you any more insight into the laws of any state but your own than the average person.

 

[Chyvan]

At least my way, they're still able to pay their bills.

She's getting a 40% cut in pay. Unless she's got money in the bank or has low overhead, her bills will not get paid doing things your way.

 

[CTU]

OP, pick your expert. All but one of the responders have vast experience and/or expertise with employment and labor laws.

The other is chyvan.

Your choice.