IT Contractors and the ADA?

Cyphertube asks: "I'm wondering what rights an IT contractor has under the Americans with Disabilities Act in the US (or similar legislation in other countries). Can an employer get rid of you as an hourly contractor in situations they couldn't as a permanent employee, despite the fact that the reason they are getting rid of the employee is due to a disability?"

"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?"

Comments

An answer.

[mbstone]

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.