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?"
maybe!
I have bad karma....
Open source is heavenly, Microsoft is the devil, SCO is going to hell
would people expect to be paid for being unable to do a job. Jesus Christ.
I have this problem. Should I...
A. Ask a bunch of people who know nothing about legalities
or the law for an answer..
or..
B. Talk to a lawyer who knows about disability law.
I'll let you decide.
... 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?
First of all we have someone asking about ADHD and getting told to see a doctor (Post here). Next we have someone asking about legal issues and unfair dismissal.
Why the hell are people asking about these sorts of things on Slashdot?!
Ask Slashdot is not legal aid. It is not your medical help line. Slashdot is a nerd/geek news website. If your car has a mechanical problem do you take it to a plumber to get it fixed? Maybe you will take it to a dentist. No, you take it to a mechanic. Simple!
Why then are people submitting this crap here, and why are the editors approving it?!
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.
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.
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.
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.
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.
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?
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
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?