Holding Out

[WorkedStiff]

I am located in the state of Virginia. I am an 60 year old assembly line worker for an international company. I have worked 16 years for them and unfortunately have developed health problems which no longer allow me to preform at my job in the previous capacity. I acquired these health complications as a result of my job. I have been placed on medical leave off and on for the past several years due to the fact that my condition had prevented me from performing my task to the best of my ability. The last work station I was placed in caused several more problems, not to mention that they did not provide me with the proper tools need for the station. Nevertheless, while out on medical leave due to my last station, my doctors recently discovered that I am unable to do anything except "light work". My employers were told this. Upon finding this out, there response was that I should "quit" or be sent back to the same station as they do not have "any light work". I have an 401k with them and I am in dire need of money as I am not receiving any at the moment. I do not want to quit because this may mean that I am unable to collect any benefits however, I can not go back to work and risk my injury worsening. I told them that I can not work the old station because it is clearly against doctors orders, so they want me to now sign papers stating that in the future I will not hold them liable for anything.. ie. my conditions which now leave me unable to do any work, which is not light duty. They call these papers exit papers, can they withhold my pension if I do not agree to sign these papers? Is it legal to fire someone and require them to absolve/relinguish you of any wrong doing before you give them what is owed to them?

 

[cbg]

If you are still employed with them, i.e. you have neither resigned nor been fired as of yet, they CANNOT legally release your 401k. There are only EXTREMELY limited reasons why a 401k can be released during your employment (and they cannot even release it for one of these reasons unless your plan document specifies that they will) and your situation is not one of them, unless the ONLY thing you are going to do with this money is pay medical bills.

You MUST either be fired or quit this job before they can legally release your 401k. They CANNOT release it while you are still employed by them. That is the law.

Contrary to what many people appear to believe, the doctor does not tell the employer what to do. You could have 100 doctor's notes saying that you can only work light duty, but your employer is not required to create a light duty job for you. If they have one available, fine, but they do not have to make one up.

The other part of your question is much more complicated involving both workers comp and ADA issues, and we really don't have enough information to answer it properly.

 

[WorkedStiff]

Constructive Termination

CBG, thank you for your reply however they have terminated me as they were unable to find any position which I could do. Thus, since I am terminated, no longer working for them how can they then request to make this "termination" complete that I sign "exit papers" which state that I will not hold the company liable for anything in the future? If one has legitimate, serious documented medical conditions brought about by a job and is now unable to do that job which is the only one available then is that not Constructive Termination? Can an employer really expect someone to do a job that will knowingly worsen a injury? (Viginia is the state, Commonwealth)

 

[cbg]

The short answer is that they cannot require you to sign anything of the kind. I didn't understand that you had already been terminated. No, they cannot hold your 401k hostage to your signing any such documentation - however, they do not have to release it except as required by the plan document. Not all 401ks are subject to immediate release. Some are only released on a monthly, quarterly, semi-annual or even annual basis. And regardless of when the plan document says it can be released, there ARE documents that you have to sign (although not a hold-harmless!). Nonetheless, they should be at the very least providing you with the documents so that it can be released at whatever time permitted by the plan.

No, this is not a constructive discharge. That happens when you are being subjected to a hostile work environment (that is, either sexual harassment or illegal discrimination under Title VII (race, religion, gender etc.) that is so bad that no reasonable person would have any other recourse except to quit.

If they refuse to provide you with the paperwork to facilitate the release of your 401k, contact the Federal Department of Labor (I don't have the phone number but when Beth comes back from wherever she is I think she does) or speak to a local attorney who specializes in employment law.

 

[WorkedStiff]

Constructive Termination (I quit) = Fired

CBG, one again, thank you! I appreciate your response as it now gives me better insight on what I have to do!

No need to bother Beth about the number as I am sure I can locate that easily enough.

However, I still take issue with the definition of Constuctive Termination as no reasonable person would continue with a job that had rendered them almost handicap, ie. limited useage of an arm. Aside from the obvious Title VII reasons, it is my understanding that reduction of wages, switching of hours and even the changing of work positions can also constitute Constructive Termination. May be a little harder to argue but nevertheless, an legal argument as to why someone "sane and resonable" would quit a job. The legal argument being quiting due to "Constructive Termination" and thus being able to file for whatever benefits owed to one, as if they were fired even if they quit themeselves.

Once again, THANK-YOU, your advice is much appreciated!