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Thursday, January 11, 2018

Can I Sue My Employer for Transferring Me?

Generally an employer has the right to run their business or agency to promote their own financial interests and in the case of a public entity to best fulfill their purpose. The relevant legal term is “bona fide business purpose”. “Bona fide” is Latin for "good faith," and in terms of employment transfers, it signifies that honesty exists in the business purpose for the transfer, and that it is not being done for illegal reasons. One illegal reason would be that you are a member of a “protected class” under the law, and the employer is discriminating against you because you are member of that class; by way of example, you are black and the boss doesn’t like blacks or has a bias against blacks, etc., or you are disabled, or an older worker, etc. Another reason that would make the transfer illegal is that it is done to retaliate against you for your whistle-blowing or because you complained to the employer about discrimination.

It is illegal for an employer to take an adverse action against you because of a bias against you because you are a member of a protected class. An adverse action in some instances can be a transfer to another location, even if it is not a demotion, if the transfer is because of a bias against you because you are a member of a protected class, such as race, age, disability etc.

The Courts have interpreted the New Jersey Law Against Discrimination to include “perception of disability” or “perceived disability” to also be protected from discrimination. Therefore, if your boss transfers you because he perceives you to be disabled, even if you are not disabled, that would be prohibited discrimination.

I recently settled a lawsuit for my client, a black public employee who had been transferred to a different work location. In his complaint he alleged that he had been subjected to race harassment by his supervisor and when he brought it to the attention of management, that they transferred him in retaliation for his complaining about race harassment. It was not a demotion per se, and he suffered no pay reduction, but for him it was a less desirable location. The lawsuit resulted in a six-figure settlement.

What will happen if I am given the choice of a job transfer or being terminated?

When a person is an "at will employee" and refuses to transfer, it may result in a termination, unless the employer stated in a written contract that the employee’s position would not require a relocation. The employer will likely characterize it as an at-will quit or job abandonment depending on the circumstances. If you are a member of a union, you should review, or have an attorney review, the CBA rules, if any, regarding transfers.

Can I collect unemployment benefits if I refuse to transfer and am terminated as result?

Employers, to avoid having to pay an increase in their taxes for unemployment benefits of former employees, will often try to characterize an employee’s refusal to transfer as a voluntary resignation. The Department of Labor looks at several factors to determine if the severance from work was a truly voluntary resignation i.e., the employee’s own choice, or a voluntary quit for “good cause attributed to work,” the latter which would entitle the severed employee to benefits. If a person refuses to transfer, he/she may in some instances be denied unemployment benefits for refusing work because commuting is generally considered a problem of the employee. When commuting problems arise solely from the personal circumstances of the employee and are unrelated to a change in the conditions or terms of employment, the employee who voluntarily quits his job frequently cannot show "good cause" qualifying him for unemployment benefits.

In transfer situations, when it is the employer who changes the terms or conditions of employment requiring a transfer to a new location that leads to a employee's true inability to get to work, generally that employee would qualify for unemployment benefits under N.J.S.A. § 43:21-5(a). Every case is fact specific. It is possible that greatly increasing the commuting distance from home to job may be considered  as a condition attributable to the employer  rather than to the employee. The geographic location of the transfer may make the choice truly not voluntary on the part of the employee if it is excessive, i.e., by example, if the employee was working five miles from home and took a bus to work, but the transferred location is 100 miles away with no bus route, requiring the employee with insufficient funds to purchase a car, it possibly may be characterized by the Department of Labor as good cause attributable to work, but there is no guarantee. 

A seminal New Jersey unemployment case as to issue of quitting an employment position for “good cause attributable to his work” is Utley v. Board of Review, Dep't of Labor, 194 N.J. 534. In Utley, the employee had a vision problem which prevented him from driving and had worked for the employer for 13 years. He relied on public transportation to commute to and from work. The employer changed the his work schedule to times in which the bus system that he formerly relied on did not run. With mandatory overtime, he felt he had to resign because he could not find transportation. The court found that he satisfied his burden under N.J.S.A. § 43:21-5(a) and N.J.A.C. 12:17-9.1 by showing that he quit his job for “good cause attributable to his work.”

At times, employers may try “culling the herd” of certain protected workers by targeting them for transfers, hoping they will just resign. If you think you may be transferred because of an illegal bias against you, or in retaliation because you complained to the employer that you thought they were discriminating, or because you whistle-blew, you should contact an attorney experienced in employment discrimination.

If You Do Not Want to Transfer and Are Thinking of Quitting.

If you do not want to transfer and are thinking of quitting, you should first contact an attorney experienced in employment law before you do so, to explore your legal options in the safest way for you. I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who were subjected to retaliation in the workplace and/or were fired. If you think you may be transferred because of an illegal bias against you or for an illegal reason, and you are thinking of resigning, you should contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout southern and northern New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, western and northern NJ to meet with clients.


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