Magazine article Workforce

Relocations That Move into Legal Quagmires

Magazine article Workforce

Relocations That Move into Legal Quagmires

Article excerpt

Legal Insight

Relocation isn't normally associated with litigation. Yet the issue isn't as cut-and-- dried as many HR professionals think. Something as seemingly simple as a corporate move can trigger any number of legal difficulties. Robert W. Sikkel, a partner in the Holland, Michigan, office of Warner, Norcross & Judd LLP, offers the dos and don'ts of employee relocation.

To begin with, how much control does an employer have over whether an employee relocates?

That's a common question: Can you force or require an employee to relocate? The answer is almost always no. It can't be required. Occasionally you'll have an employee who is hired with the understanding that he or she will be moved around the country as part of training or the business practice. You see that a lot in retail with managers and assistant managers. And while it would be understood that the employee should take the relocation, there's no way you can physically force them. But most of the time, when the relocation comes, the employee has not necessarily anticipated it or agreed to it up front. Therefore, an employer needs to present the relocation as if it is the employee's [only] option to remain employed by the company.

How do you present this relocation ultimatum?

Typically it would be approached conversationally with the individual. The opportunity to relocate would be presented. Employers should also think about the alternative. If the employee declines the relocation, then be prepared to address the status of that individual. It likely means the employee loses his or her current position. So HR might then offer some severance pay, and typically also ask for a waiver of claims in exchange for the severance pay. So the employee should be presented with a good-faith option to either stay with the employer and accept the relocation, or-you need to fill in the blank as to what the other choice is.

So if the employee refuses the relocation, HR should have that person sign a waiver?

If the employee doesn't take the relocation and instead accepts some sort of severance package, that all needs to be documented, and the release must be in accordance with applicable state and federal laws today.

How else should an employer protect itself from an employee who loses his position because of his refusal to relocate?

That comes up in the area of forced relocation. For example, the employee declines a move to Montana. The employee's position at the company is then forfeited. The legal question at that point is, what has just happened? The typical model is: when an employee leaves a company, he or she either quits or is fired. The employer might say, "I did not terminate this employee. I offered this employee another alternative, and this employee said no. This employee quit." The employee says he didn't quit. By requiring him to take a position miles away in a different state, the company created a circumstance where-while he wasn't specifically fired-constructively that's what has happened.

And what's the significance of the employee's termination claim?

The significance of that is, No. 1, an employer should recognize that simply terminating the employment after offering relocation doesn't automatically mean the employee quit. And it does not alleviate the potential for challenges like constructive discharge. …

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