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)
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.
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.
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.
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.
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.
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DONT PANIC