About to be fired today due to disability?

[JoJerome]

What is the name of your state? Arizona

I know it's a long shot but...

I'm having a necessary surgery - hysterectomy - tomorrow which will put me out of work for 6-8 weeks.

The company knew about this 2 months ago and together, the manager and I decided upon the surgery/recovery date easiest on the business.

One of the owners wants to talk to me today and, based on conversations of the past couple of days, I strongly suspect they are either firing me or I'd be returning on-call or part time, due directly do this ... illness? disability? Not sure what constitutes 'disability.'

Making this an even longer shot, I'm a 1099 employee.

My questions are:

A) Do the disability discrimination laws apply to 1099 employees and if so, would this case theoretically be viable?

B) Knowing discrimination cases are nearly impossible to document and/or prove, what can I do in this meeting today, if it goes the way I suspect, to document that it's discrimination and they're not just firing me for the hell of it (which I know full well is legal)?

Thanks in advance...What is the name of your state?

 

[Beth3]

Making this an even longer shot, I'm a 1099 employee.

Let's clarify this first. Are you saying you are an independent contactor? If yes, then you are not an employee.

 

[cbg]

And if you were an employee (receiving a W-2) recovering from a hysterectomy is a temporary thing and thus would not be covered under the ADA or disability discrimination laws.

The question (if you were an employee, which evidently you are not) would be whether or not you qualified for FMLA.

 

[JoJerome]

Kind of thought that

Beth - While my Tax guy says they shouldn't be legally able to call me an independent contractor, they do. I'm on a 1099.

CBG - Thanks - That's why I asked. Hmmm, if I can show the fibroid tumor to be 'alive,' then maybe it's maternity leave, eh?

Thanks for the feedback guys. I knew this was a long shot.

 

[ecmst12]

If you think you are incorrectly being classified as an independant contractor, you can file a claim with the department of labor.

 

[>Charlotte<]

Jo, this isn't legal advise, but just so you know:

I had a complete abdominal hysterectomy a year and a half ago. I was told to expect an eight week recovery, but I was back at work after two weeks. I figured if I was just going to sit at home I might as well sit at work, so my boss and I agreed to a "let's see how it goes" schedule. Not being able to lift more than ten pounds got in the way a little, but someone was always willing to do that for me when necessary. I got a temporary handicapped placard so I could park right out front, and I was good to go. The most strenuous thing I had to do was walk around the office, but after the first couple of days you'll be encouraged to walk as much as is comfortable for you anyway.

Of course, everyone is different. I've heard of some women who actually took longer than eight weeks to get back on their feet, you may not have a "desk job" as I do, and I understand you're employment status is different than mine, but I just wanted you to know that you're not necessarily going to be house-bound for two months.

By the way, if you're home yet I know what you're doing right now. Tastes awful, doesn't it?

Good luck.

 

[pattytx]

If you think you are incorrectly being classified as an independant contractor, you can file a claim with the department of labor.

I couldn't agree more. The IRS, the state Dept. of Revenue, the state UI agency, etc. might be interested also.

Can I ask why you think you have been misclassified?

 

[cbg]

If you are an employee, as opposed to an IC, while the ADA and discrimation would not come into play, FMLA might. Let me know if you want details.

 

[Gadfly]

While my Tax guy says they shouldn't be legally able to call me an independent contractor, they do. I'm on a 1099.

If you are on a 1099 you are an IC.

 

[Beth3]

CBG - Thanks - That's why I asked. Hmmm, if I can show the fibroid tumor to be 'alive,' then maybe it's maternity leave, eh?

Ok - that's hilarious.

There are several legal issues here and you may need to consult with an employment law attorney to sort them out:

1. Whether you are misclassified as an IC when, in fact, your status with the company should be that of an employee.

2. If you are an employee, whether you are entitled to take leave under the Family and Medical Leave Act and are being denied your lawful rights by the employer.

 

[JoJerome]

Re-opening this now that I'm home and recovery is chugging right along...

A friend independently suggested pursuing the 1099 status route. Indeed, if I understand AZ law correctly, that status is being illegally applied to me and my co-workers. E.g.; We use company equipment, the company determines our days on/off, I don't have the option of turning down work or setting different hours for myself. The relationship is very employer-employee.

I wonder then if, at best, this gives me a trump card/bargaining chip on the possible discrimination issue? At the least, a case for back taxes?

Is it possible to get an FMLA retroactively? Or to otherwise show this was non-elective surgery?

Basically, before I raid my food budget to get an in-depth consultation, I want to make sure I have a hope of a case so far. Broke, semi-homeless, guts still finding their new settling points, and now unemployed - I really can't afford to spend $200 to have someone tell me in the first 30 seconds to get out of their sight.

And Clt747 - yes. In fact, after 5 days on a clear liquid/magnesium citrate diet, the tomato soup I finally got in the hospital was the most wonderful meal of my entire life. And I don't even like tomato soup. As for bouncing back, I do feel like I could do desk duty next week. But I had to err on the side of caution in my planning.

- Jo

 

[DarlaLee]

I work as an IC transcriptionist, and here is the critera I was given by my compay as standards for an employee vs IC worker.

The IRS uses a twenty question test to assess the level of control ("yes" answers provide evidence of an employer--employee relationship)

Is the worker required to follow your instructions in completing the job or accomplishing the task?
Do you provide the training necessary for completion of the job?
Are the worker's specific personal services required for successful completion of the job?
Are the worker's services crucial to the success or continued existence of your company?
Do you set work hours?
Does the worker have a continuing relationship with your company?
Do you hire, supervise, or pay any of the worker's assistants?
Is the worker precluded from seeking assignments with other companies or from refusing assignments offered by your company?
Do you specify the location where the work must be performed?
Do you direct the order or sequence of tasks to be performed?
Do you require progress reports?
Is the worker paid by the hour, week, or month, rather than for the completion (or stage of completion) of the project?
Does the worker work only for your company?
Do you pay business overhead and incidental expenses?
Do you provide equipment, tools, and materials?
Is the work performed on your premises or using your facilities?
Are the worker's services not available to the general public?
Do you provide a minimum "salary" and therefore shield the worker from the risk of profit or loss on the job?
Do you have the right to terminate the worker even if the job results are achieved?
Are you required to pay the worker for time spent even if the job is not completed?

Hope this helps. Btw... for what it is worth, sounds to me as if they should classify you as an employee.

 

[eerelations]

You don't need to pay an attorney at this point. Taking your case to the IRS and the DOL is free.

 

[JoJerome]

- Do you hire, supervise, or pay any of the worker's assistants?
- Do you require progress reports?
- Is the work performed on your premises or using your facilities?
- Are the worker's services not available to the general public?
- Are you required to pay the worker for time spent even if the job is not completed?

The answers to these are 'no.' I don't have assistants and work (tour guiding) is done on US Forest Service trails and city property, not company-owned property.

- Is the worker required to follow your instructions in completing the job or accomplishing the task?
- Are the worker's specific personal services required for successful completion of the job?
- Is the worker paid by the hour, week, or month, rather than for the completion (or stage of completion) of the project?
- Does the worker work only for your company?

These fall under 'sort of.' We are somewhat directed in how to give our talks. There is one other company in town we have a partnership with and in a pinch, can drive for that company. We're paid hourly, but only while physically on tour. Then again, even the employee-employer companies in town are set up this way.

- Do you provide the training necessary for completion of the job?
- Are the worker's services crucial to the success or continued existence of your company?
- Do you set work hours?
- Is the worker precluded from seeking assignments with other companies or from refusing assignments offered by your company?
- Does the worker have a continuing relationship with your company?
- Do you specify the location where the work must be performed?
- Do you direct the order or sequence of tasks to be performed?
- Do you pay business overhead and incidental expenses?
- Do you provide equipment, tools, and materials?
- Do you provide a minimum "salary" and therefore shield the worker from the risk of profit or loss on the job?
- Do you have the right to terminate the worker even if the job results are achieved?

The answer to all of these is 'yes.' I'm thinking what especially makes it employee-employer is that the company sets my hours and days as a regular employer would and I don't have the option of changing those hours or turning down work.

As for how to pursue it, I'm definitely keeping IRS/DOL in mind. Though on the disability discrimination front - if there's still a case - I'm thinking more specific legal help is needed? Plan A is to hopefully get some damages there. I soooooo hate the America is so lawsuit happy and soooooo hate to be a part of that. But semi-homeless, dirt poor, being kicked while I was down like that, I suddenly don't feel so bad going for the rich, heartless, company owner's pocketbook to get me back on my feet and into another job.

 

[JoJerome]

By the way, I know (or hope) you all get this often, but THANK YOU!

A big part of the wall that prevents the little guy like me going after the big guys is the gamble of going through time and expense just to get the most basic of do-I-have-a-case questions answered.

What on earth did we do before the Internet?