My entire department is being laid off and a new spinoff smaller non-profit is forming. The layoff becomes effective in 3 months 6/30/2013 and notice in lieu of severence was given 3 months ago. The layoff letter which everyone received states that as a volunterry act :
• if the spin off non-profit does not offer you any position, and you have not been fired for cause before the lay off date, the current company will still pay separation pay equal to the current companies severance policy.
• If you are offered a job and refuse it, jointly, the two companies will decide if they will pay some or all separation pay depending upon whether the offer of continued employment is materially different.
An outside consultant has been hired to accomplish the spinoff and since she came 3 staff have had accelerated layoff for "budgetary" reasons but they have each received the maximum separation pay which mirrors the severance policies. One staff was asked to resign on the layoff date and has been promised the maximum separation pay equal to the severance policy amount.
I have a senior position and run the accounting function. My staff is being cut and the level of staff degraded from trained bookeepers to office clerks and my workload will be significantly increased without a pay increase. I am writing the new job descriptions including my own for review by the outside consultant. I have been told by the consultant that I will be offered the position I am writing up within the next 3 days. I am 62, eligible to retire from the existing company and do not want to accept a job at the spinoff because 1. the position which will be offered is materially greater and a different type of work than my existing position without any pay increase 2. The staff which I will have available to me to accomplish my responsibilities has been degraded 3. All of the benefits are materially less including a drastic reduction in retirement contributions 3. I do not have confidence in the integrity of the Board leadership of the spinoff company .
I have not notified either company that I do not want the new job. Finally with regard to the outside consultant. I have felt harassed by her. She has "in jest" mentioned that she was thinking of a way to have me fired for cause, and has “in jest” made several disparaging comments in front of my staff. On one occasion she referred to me with a pejorative racial name in front of two collegues. I feel harassed and diminished every day and would welcome any early exist which would leave me financially whole.
Question: When I refuse the new job what is my argument for the full separation pay, and will the fact that I am writing the new job description work against me in making this argument and does there appear to be any legal basis of my argument for full separation pay? Is there a way to have an early exit and remain financially whole?