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Demoted or no job

Discussion in 'Termination: Firing & Resignation' started by nopinoni, Oct 26, 2019.

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  1. nopinoni

    nopinoni Law Topic Starter Member

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    Hi,

    I am a New York based full time makeup artist and am working for this cosmetics giant over 7 years. I consistently achieve my goal and always in good work ethics. This position is an hourly pay and non-commission base plus no sale goal. My main job function is provide makeup application and skincare services.

    Yesterday, my Field Executive and Business Manager had a short conversation regarding my position will be cut, I'd been told that I will be demoted to became regular sale beauty advisor with sale goal and with commission. I have been told that if I do not accept the job, I will be let go and no other option. Right after a short 5-10 minutes conversation, they told me that the Human Resource will be arrived in 10 minutes. I was shocked because of such a short notice.

    The HR told me the same thing which is my position will be cut and I'll be demoted and became Sale beauty advisor, and will have to meet sales goal and all the Sale Beauty Advisor job responsibilities. They told me I have to work 5 days per week. Unfortunately, I currently only work 4 days due to my work injury and under workman compensation. I got advise from my doctor that I only allow to 4 days with a restrictions.

    I am confused and upset that my title will be cut soon. I love my job so much and always work the best I can. I always get an excellent performance in my reviews every year. I'm worry about my medical issue, I'm afraid I will not be able to handle the sale goal and stress plus 5 days work week. My superior want to know my decision by this coming Monday (10/28/2019). I don't know what do to.

    Is it legal if they fire me or let go me if I don't accept the Sale Beauty Advisor position while I'm still under workman compensation? Do I need to hire an employment lawyer?

    Please help urgently.

    Thank you in advance.

    Nopi
     
  2. army judge

    army judge Super Moderator

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    I suspect your physician determined you have a partial degree of disability.

    If that is the case, it becomes particularly important to understand exactly what restrictions your doctor recommends.

    You might wish to speak to and engage a NY State licensed attorney who specializes in "workers comp" claims.

    You can locate dozens searching online, interviewing, and selecting one to represent you.

    You and your employer might not fully understand "workers comp" with it's many "dos & don'ts".

    An injured worker should never exaggerate the injury or disability and must be candid with her/his physician and Independent Medical Examiners about the daily life activities.

    As an injured worker you must endeavor to use common sense to avoid any allegation that you are committed fraud under Section 114 of the Workers’ Compensation Law.

    The Workers’ Compensation system in New York is complicated.

    That is why you must retain an experienced New York State Workers’ Compensation lawyer of your choice, ASAP.

    If you are unable to speak to and engage the services of a lawyer BEFORE Monday's deadline/decision comes, maybe you could ask your employer for Monday and Tuesday to be vacation or sick days.

    that way you'll have to time to speak to your physician and hire an attorney to advise you further.

    I am reluctant to offer you specific LEGAL advice, and you should be reluctant to seek it UNTIL you have hired an attorney to advise and direct your efforts.

    Legal advice is BEST when it comes from YOUR attorney, not anonymous internet posters.

    I wish you health, peace, and wealth.
     
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  3. nopinoni

    nopinoni Law Topic Starter Member

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    Hi Army Judge,

    Thank you for the quick reply. I appreciate it.

    I thought this is an employment issues and need an employment attorney. I do have a worker compensation attorney that I work with me since the injury and helping me in handling all the paperwork. I did not know that I should be going to ask them regarding this issue. I wasn’t sure what type of attorney to go to. Thank you for letting me know. .

    What important questions should I be asking when I speak to worker compensation attorney?

    The HR is a new hired and seems young, she is aware that I am working 4 days due to my work injury. However, she wants me to work 5 days once I become Sale Beauty Advisor.

    Monday and Tuesday are my day off, but my superior want me to give her a call to let know know my decision. I might need to delay giving her an answer.

    Thank you so much!
     
  4. Tax Counsel

    Tax Counsel Well-Known Member

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    The short answer is yes, it is legal for them to demote or fire you while you are on worker's comp so long as the action is not being taken because you filed the worker's comp claim. If the action is being taken for some other reason, like a need to downsize, then being on worker's comp does not protect you. You might have some protection under the Americans with Disabilities Act (ADA) or Family and Medical Leave Act (FMLA) or similar NY laws, however, that might enable you get the employer to allow you to work only 4 days a week, at least for awhile, or make other changes to the new job to accommodate your medical situation. But those laws will not prevent you from getting demoted. You may wish to see an employment law attorney for advise to go over the exact details of what is happening and see what options you might have, but realistically that won't happen before Monday.
     
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  5. cbg

    cbg Super Moderator

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    How long ago was your work injury?
     
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  6. adjusterjack

    adjusterjack Super Moderator

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    My advice (not legal advice) for the two cents that it's worth: Take the demotion and immediately seek employment elsewhere. During that period if you get fired because you don't meet your goals you'll be eligible for unemployment compensation. If you decline the demotion and get fired, you may be ineligible for unemployment compensation because of "refusal of suitable work." Not exactly sure about that but it's a risk.
     
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  7. nopinoni

    nopinoni Law Topic Starter Member

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    Got it. Thank you for the information.
     
  8. nopinoni

    nopinoni Law Topic Starter Member

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    I understand. I appreciate your advise. Thank you.
     
  9. nopinoni

    nopinoni Law Topic Starter Member

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    A year and a half. I had a surgery after the injury. And going to have another surgery for different body part soon.
     
  10. cbg

    cbg Super Moderator

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    If it has been a year and a half since your work injury, I think you will have a very hard time proving that the sole reason for the demotion is that you filed a workers comp claim.
     
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  11. adjusterjack

    adjusterjack Super Moderator

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    Do you have some sort of an "official" disability?
     
  12. Tax Counsel

    Tax Counsel Well-Known Member

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    "Official" is not a great word to use here. There is no such thing as an official disability versus an unofficial one. For the ADA, the issue is whether the employee has a condition that meets the definition of a disability in the Act. And that definition is quite broad. The federal Equal Employment Opportunity Commission (EEOC), which is the agency that enforces ADA claims in the employment setting, explains what is a disability under the act on its page on Disability Discrimination.
     
  13. nopinoni

    nopinoni Law Topic Starter Member

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    Hi Everyone,

    Thank you for the advice and info. After received the info from everyone. I need time to gather my thought before I get back to my superior. I'm not sure If it's necessary to consult an employment attorney?

    Thank you.
     
  14. army judge

    army judge Super Moderator

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    Why not start by asking your workers comp lawyer?

    You'll get an answer or be shooed away.

    Nothing ventured, nothing gained.
     
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