Slashdot Mirror
IT Contractors and the ADA?
"Let me explain my situation. I was hired as an IT project manager to handle the implementation of 3rd-party software. While I had to write lots of documentation and gather requirements from plenty of people, my requirement to be in the office was in all reality not important for my job. As an hourly contractor, I was allowed to bill for hours worked from home.
Well, in October this year, I was diagnosed with leukemia. This, of course, made it difficult to work in the office during chemotherapy and with my weakened immune system, but they said that they would bring in a temporary employee and that I could likely work telecommuting. Under the ADA, this would be considered reasonable accommodation, since I can work, and they already provide such resources for other employees.
Unfortunately, this new employee they've brought in to replace me, also a contractor, is now sitting in my job that I had, despite my ability to work (I could have even returned to the office for two weeks). The project is way behind schedule, and I was just told that they can't bring me back because there's no budget, since they replaced me with this other guy.
I've heard that this is legal, and then from others that it clearly violates the ADA (since I'm a W-2 worker through a contracting agency and my replacement is from the same agency). Aside from a clear reason to remind everyone to get disability insurance, are there any ideas to what my legal standpoint would be?"
... get a lawyer. Seriously. Even if a lawyer posts on slashdot, he or she will be sure to caveat their advice in terms that will make their advice essentially useless. I have a very close friend dealing with ADA issues at work, and without qualified legal advice, you can't move forward. For pro bono law advice, you might contact your state AG, who might be able to help you at least get a grip on your options. Also, get into contact with local law schools, they will probably have a list of local firms or organizations who will do pro bono work. You could go pro se, and since the ADA is relatively new, there's just not twelve tons of case law surrounding it, so you might have a chance. But why risk it?
Only two things are infinite, the universe and human stupidity, and I'm not sure about the former. (Einstein)
I've heard that this is legal, and then from others that it clearly violates the ADA
What does your lawyer say?
IANAL and of course you should get one but all these "ask slashdotters" only seem to get that as a responce. Since knowledge is power wouldn't more info from other slashdotters who may have encountered this before be of help to the lawyer when he does see him. Just because you didn't study law doesn't mean you can't possibly help. With the usual disclaimers, i.e. IANAL, you could at least help some.
Why don't you guys have friends or journals?
This Googled, IANAL answer is worth what you paid for it but it would appear that contractors are not protected by the ADA.
What I'm listening to now on Pandora...
Get a lawyer!
Read here.
Talk to a lawyer.
Do not ask Slashdot.
Agreed. I Europe, for example, people don't only expect to keep their job when they are temporarily disabled due to an illness, they actually do keep their job. In America most of the good social-security systems died with the end of the Aztec kingdom, I am afraid. And I do hope that parent poster never finds out why this might be important.
:)
I think this is mostly a legal problem but I don't know americal laws well enogh to understand your position regarding a rather special and temporary engagement you seem to be describing. Grocklaw, anyone?
-Kvorg
This is a serious topic and you are talking about first post? Get a life!
-----
One is born into aristocracy, but mediocrity can only be achieved through hard work.
I lost my last job as Lead Systems Administrator after a brief stay in the hospital related to my bipolar disorder. Considering they had just gotten rid of most of the founders of the company, and most developers making more than the base salary, I'm sure they were just looking for an excuse. Technically, I was "laid off". I now make a full 2/3 less at my current job, but I'm not bitter or anything.
Because there is more to Slashdot than just UNIX/MS/Apple Bigots running amok. This may not pertain to you but it does to more people than you can imagine.
If you have notified your employer of your diability and this has happened to you, go to the EEOC NOW!!
http://www.eeoc.gov/
The EEOC is the enforcers of the ADA. There are not any private lawyers that handle ADA cases, just the EEOC.
Your employer is more than likely screwed from what you've described above.
Find the contact information of the local office
in your area and get the ball rolling.
I'm going through a simialr situation with Microsoft at the moment and am working with the EEOC to right the wrongs MS has done. In my case MS is screwed because not only did they not provide any of my reasonable accomidations but they were supposed to help me with a job search after being on extended medical leave.
Nine times out of 10 companies haven't a clue how to make accomidations for the ADA. In my case, MS considered me different from the 'herd' ostrasized me, and forced me out.
like others have said, you should not be asking these types of questions on slashdot because you have no control over who posts. I can say im a lawyer who specializes in this area and say they can sue the pants off the company, but that doesnt mean its true. With that in mind, i dont take this as a serious post, the poster shouldnt have asked slashdot he should ask a lawyer. If he still thinks he should ask a lawyer then i pity him because people get screwed in scams all the time and this may just be when he gets screwed for following the advice of a 'slashdot lawyer'
I have bad karma....
Open source is heavenly, Microsoft is the devil, SCO is going to hell
Although, i should have probably said what i just said in my first post ^_^
I have bad karma....
Open source is heavenly, Microsoft is the devil, SCO is going to hell
It's not a job, it's a contract position. Contractors are brought in to fill very specific tasks over a limited period of time, get paid a lot of money (that's how it's suppose to be; I'm a consultant, and let me tell you, the things people try...) and don't have any of the regular protections an employee has (paid holidays, sick leave, severance pay, training, whatever.) Stokely has some good things to say here.
It has nothing to do with Europe vs. America--the ADA is actually quite strict about this sort of thing for salaried employees.
As for good social security programs, they died out in the US about the time good railways died out in the UK, for some perspective.
Cole's Law: Thinly sliced cabbage
You really ARE a fucking dumbass.
However, don't waste too much energy on those bastards, they're not worth it, obviously. I wish you luck with the other, more important battle. Get well soon - there will be other jobs later on.
Yeah, because everyone has $1,000 to spare for a lawyer for every meandering question they have about their career.
And anyway, the answer is "any employer can fire you for any reason they want and get away with it because you can never prove what the real reason and their real intention is". It sucks, but ain't shit you can do about it.
Seriously...how can people really think that asking on /. is the best method to get legal or medical advice?!
I think everyone can agree that people should not rely entirely on Ask Slashdot for life-critical legal or medical advice. Yet this forum does have several valuable uses.
Foreknowledge: People would do well to remember that doctors and lawyers are only said to "practice" in their field. The medical and legal fields are so complex and people's problems are so idiosyncratic that you cannot trust any given doctor or lawyer to do a good job. YMMV based on the quality and experience of that doctor or lawyer. Finding a "good" doctor or lawyer is not easy. With information gleaned from Ask Slashdot, an informed person can winnow out inexperienced doctors and lawyers.
BOF support: Ask Slashdot also provides much needed social support to people facing serious problems. Finding out that others have had the same problem and how they coped with it can be a comforting boon to the poster.
Cost:. I suspect the poster does not want to spend a $1000 on some lawyer only to discover that the answer was an obvious "no." If the ADA is black and white on the issue of protections for contractors vs. employees, then you don't need to pay a lawyer to research the case. Its not that the poster is a cheapskate, they just don't want to throw good money after bad.
Although I would adhere to the parent's advice to Get a lawyer, I would also recommend that people continue to Ask Slashdot as part of a multipronged knowledge gathering strategy.
Two wrongs don't make a right, but three lefts do.
Are all European countries Communist? Or is everyone just a pussy liberal?
The querent noted that he had a W-2 position with the contract agency. Thus, he had a job. The fact that the job was hourly wage rather than a salary and had no benefits doesn't make it less of a job.
Tom Swiss | the infamous tms | my blog
You cannot wash away blood with blood
Yeah, because no one who was telecommuting can spend a few minutes/hours on the phone finding a lawyer who would do free consultation. Or call the local department of labor or employment and see what they say.
Considered harmful.
Let me echo the statements above about consulting with a real attorney.
What you might have to look at though is who is your real employer. If you're employed through a contract house, they might be required to provide you with whatever adaptive systems are needed to accomodate a disability. If you're a self employed, independant contracor, then you might be the one stuck with the extra costs.
Again, talk to a lawyer. Also, there are probably several advocacy groups you could contact for help.
It's good to use your head, but not as a battering ram.
Why then are people submitting this crap here, and why are the editors approving it?
/. every day (several hundred thousand?). Out of all the readers of a particular post, there will usually be at least several who have experienced what the poster is requesting info for. A lawyer doesn't know EVERY single piece of case law, just like a doctor is not aware of EVERY mode of treatment for a disease, especially a rare disease. /. to present to your lawyer who can then research it and say "I never heard of that one but it's right here in the book", then you've saved yourself time and money and can now proceed with more confidence in your case.
Because, you shithead, people are not asking for legal advice here, they are asking for life experience. You forget how many people read
If you can get an idea, or legal angle, from
So, you piss-ant AC, SHUT THE FUCK UP and learn to read between the lines.
I'm good with numbers -
When you sign up to work as a "1099" or other type of "contractor," your contract probably said in big, bold letters, "I Agree That I'm Not An Employee." However, the law favors employment relationships and disfavors "contractor" relationships, especially where the intent is to evade employment laws that are supposed to help employees.
For example, if Roofing Corp. hires you as an Independent Contractor to do roofing, and you fall off the roof and file a workers' comp claim against Roofing Corp., chances are that the workers' comp courts will rule in favor of you, the guy with the broken back. The fact that you might have signed a document purporting to waive your rights to workers' comp is probably not going to float, especially in industries such as roofing where workers' comp is expensive (because lots of people break their backs falling off roofs), and employers routinely try to scam their way around the law by making people sign "contractor" documents.
So, in your case, you might not be out of luck in claiming whatever your ADA or other claim might be. It depends on the many complex legal factors that determine what-is-a-contractor-and-what-is-an-employee (the IRS website has the most comprehensive list of these), the nature of the legal rights you are claiming, the law in your state (California, good; Texas, bad), and a whole bunch of other issues / factors that are best spotted by the local labor and employment law attorney with whom you need to make an appointment. IAAL but IANYL.
Reading your post again, it appears you are not actually a "contractor," but a W-2 Employee of the contractor. So your legal question then becomes does the contractor relationship between your direct employer and the ultimate hirer attenuate the obligations the hirer would otherwise have under the ADA. Probably not, but, again, ask a lawyer.
Not so long ago I was hired to do work. Due to various circumstances I did not do the work required, and the scumbags had the guts to say they wouldn't pay me.
Being a bunch of dirty Communist hippies that you are, here's my question - how can I get money for not working and, if possible, perpetuate this practice?
While we may not have many lawyers/doctors (and even if we did they'd have to disclaim their advice like crazy for liability/contract reasons), what we do have is a large number of fellow nerds/geeks and a pretty good chance that somebody else has had a similar situation.
Now, while that person may not have legal/medical qualifications, maybe they've had to talk to a lawyer/doctor/psychologist about something similar and can give you a push in the right direction and an idea of what to expect. Not everybody is an expert in Google-Fu, and even if you are, sometimes you just don't know what to google for. Of course, everybody's experiences with situations is different. When I bought a home I asked a dozen friends/coworkers who owned homes questions. By the time escrow closed, I still had no clue WTF I was doing, but at least I knew in what ways I was probably getting screwed. Anywho...
So, reasons why "the hell are people asking about these sorts of things on Slashdot":
- There's a good chance somebody else has gone through (or known somebody who has) something similar.
- Those people can provide insight of great value.
- Most of those will be disclaimed with IANAL, etc.
- You should always google before you Ask Slashdot. But sometimes you just can't find that set of search terms to yeild what you want. Somebody's response to your Ask Slashdot could contain some words you never thought of putting in your search that when added take you right to what you need.
You don't take your car to the dentist, but your dentist owns a car, may have had the same problem and may even recomend a good mechanic.But lawyers can cost hundereds of dollars an hour. So having a better idea of what to ask the lawyer before they're on the clock is very valuable.
Of course, you have to take it in perspective of what your dentist may know about "good mechanics", but at least you'll have a better idea than you had before.
</OFFTOPIC>
DONT PANIC
First off, IANAL...
You mention that you are a W2 employee of the contracting company that placed you. My question is this: Are you still employed by the contracting company (i.e. "on the bench"), or did the contracting company fire you since you don't have any billable hours. I would think that since you seem to have an employee-employer relationship with the contracting company that they would be obligated to honor the terms of the ADA. It may get a little "sticky" because the decision to not follow the ADA was made by a third-party (the company you were contracted out to), but that's where you would need a good lawyer to argue your case.
Anyway, I wish you good luck with your illness and your case.
------
www.moneybythenumbers.com
Except he's not an employee of the company that "fired" him. If he were, of course he would get his job back.
In this situation, he's an employee of the contracting firm that placed him in that job. The contracting firm is the one who has the employer obligations, eg. getting him a new contract position/job. _They_ can't just fire him because of this incident.
Let's say you're an artist, and you are employed by a company that provides original paintings to businesses. They get a contract from a business to provide a watercolor of sunflowers, or whatever, and you are assigned to paint this picture. If you are injured before the painting is completed, and are unable to work on it for a while, the business that's buying the painting doesn't care, they just want their painting finished. So your employer has someone else work on that painting. You don't get your contract back because the other artist has it now, but you still have your job, and you are still in the pool of artists they can have do the next painting they get a contract for.
Contracting is an odd situation WRT employment laws, since you're not actually employed by the company you're working for. But by itself that doesn't mean that the US is backwards in its social systems.
I saw the title and thought the government was forcing contractors to code in ADA... and was glad I'm not a contractor
I think this internet thing sounds like a good idea
First consult a lawyer for the real answer, but from what I have read.
First of all Lukemia isnt disability, its a disease. The ADA most likley doesnt apply at all to your case. There may be others, but as a consultant your pretty much on your own. If you cant do the work, why should they be forced to pay and employee you. I am very sorry for your condition.
The ADA does give you rights to reaonable accomodations to make a workspace usable to a
disabled user. Its doesnt force the changes if they are cost prohibative. If you have hearing problems asking for an amplifed phone is acceptacle. If your in a wheelchair and your job is a factory line working and you would require special planking to get you up high enough to see the work that could be prohibative cost depending on the employer. The ADA doesnt give your the right to a specific job, but to a job of similar status/pay scale.
Now the tricky question is do they violate the ADA when they ALLOW their client to bench their employee, and cease paying him any billables for discriminatory reasons under the ADA? My guess is that a good lawyer could convince a judge that your W-2 employer of record is responsible under the ADA for making up for your lost billables.
If nothing else, a good lawyer would likely convince your employer that they owe you compensation if they want to keep things out of court. Of course, if you think your relationship with your employer is worth more than the lost revenue, you might want to try the "nice approach" first of discussing with them the hardship this has created given your illness. If you have zero relationship with them and they were truly just an employer of record, then by all means, find a sympathetic employment lawyer in your area who comes well recommmended, who can do some work for this on the cheap or on the free.
And best luck to Midwestern gadget freak with the issues that really matter, like getting well soon.
Let me guess... your disability is illiteracy, right?