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Businesses The Almighty Buck

IT Contractors and the ADA? 43

Posted by Cliff from the sketchy-business-practices dept.
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?"
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IT Contractors and the ADA? More

IT Contractors and the ADA?

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  • Don't ask Slashdot ... (Score:5, Informative)

    by Quixotic Raindrop ( 443129 ) on Thursday January 15, 2004 @12:58AM (#7982354) Journal
    ... 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?
    • Why Ask Slashdot? Because lawyers are just as dumb as the rest of us. It pays to have some alternative opinions, no matter how unqualified they are. Besides, there are actually non-lawyers that are qualified to answer legal questions because we've been through something similar.
  • 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.

  • Google says... (Score:3, Informative)

    by Otter ( 3800 ) on Thursday January 15, 2004 @01:36AM (#7982546) Journal
    ...no.

    This Googled, IANAL answer is worth what you paid for it but it would appear that contractors are not protected by the ADA [ppspublishers.com].

  • Ask Slashdot! (Score:4, Insightful)

    by MrWa ( 144753 ) on Thursday January 15, 2004 @01:43AM (#7982594) Homepage
    Seriously...how can people really think that asking on /. is the best method to get legal or medical advice?!

    Get a lawyer!

    Read here [eeoc.gov].

    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 trus

      • Here, here!

        I'd even add that this can provide some amount of foreknowledge for the rest of us. I do a small amount of contract work, and anything I can learn to help me avoid potential pitfalls is worth at least a few moments of my time.

        In fact, I'd say that more often than not, Ask Slashdot has provided me with some little nugget of knowledge that has been useful later. Sometimes it's only just that it introduces a topic for me to explore further.

  • Go to the EEOC NOW!!!! (Score:1, Informative)

    by Anonymous Coward
    If you have notified your employer of your diability and this has happened to you, go to the EEOC NOW!!

    http://www.eeoc.gov/ [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 wr
  • Sounds like the company you were working at is in no fault, from the legal point of view. You may have better case (perhaps) against the agency that sold your contracting services.

    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.

  • 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.

  • An answer. (Score:3, Interesting)

    by mbstone ( 457308 ) on Thursday January 15, 2004 @12:19PM (#7986224)
    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.
    • I've wondered about this issue too, since I'm a W-2 employee of a contracting agency. I've never consulted a lawyer about this, but my hunch all along has been that there's a giant loophole here.

      The client company dropped you because of the disability. Since you're not their employee, they can probably do that.

      The contracting agency dropped you because they can't bill the client for your hours now. Since they're not discriminating against you -- they're just responding to client demands -- my guess is the
  • 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 t
    • IANAL either, but I spend enough time around them to have enough clue to say this case is complicated enough to require one. And I think you've identified the key issue here. The fact is he is a W-2 employee of a contracting agency. This makes the agency subject to the terms of the ADA with respect to their employee, even if he does all his work at another company's site and has no day-to-day interaction with his true employer.

      Now the tricky question is do they violate the ADA when they ALLOW their cli

  • I saw the title and thought the government was forcing contractors to code in ADA... and was glad I'm not a contractor
    • I thought they were talking about the American Dental Association... Maybe he was worried about outsourcing to the British or something ;-)

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