Know your rights when being confronted by your employer for disability

[phrigndumass]

As you may know, I am on disability for adrenal fatigue and mental health issues. My employer approached me by email today and said we need to discuss "how things will be" when I return from disability. He mentioned that I would most likely be doing the job I had when I first started 16 years ago (I am currently an executive), but I would work enough hours to earn health benefits but not retirement benefits. I assumed this came with a pay cut.

If such a thing happens with a pay cut, then my disability payment will be based on a percentage of the new lower pay rate, instead of a percentage of my current pay rate. This pay does not come from the employer, but from the insurance company which houses this disability benefit.

If this has ever happened to you, you have rights! These are some of your rights:

1. An employer cannot violate wage and hour laws, regardless of religious or nonprofit status. However, written agreements can be made between employers and employees that preclude a few of the wage and hour laws. Be careful what you sign!

2. Unintentional actions by the employer:
An employer is prohibited from limiting an employee’s duties based on a belief it is best for the employee or based on a presumption of the employee’s disabilities. The employer is also prohibited from demoting the employee, denying pay raises, or limiting the employee’s bonuses based on the employee’s condition.

3. Intentional actions by the employer:
An employer may not take any “adverse employment action” against an employee on the basis of a “protected category” such as race, gender or sex, color, religion, national origin, disability, or pregnancy. Adverse employment actions consist of decisions that materially affect the terms and conditions of your employment. Common adverse employment actions include:
    •Termination or discharge;
    •Demotion or unfavorable transfer;
    •Pay reduction;
    •Denial of promotion or advancement; and
    •Failure to interview or hire.

4. Actions the employee may take:
    •An employee can file a claim with the state wage and hour and/or disability agency
    •An employee can file a claim with the EEOC
    •An employee can file a claim for retaliation for having filed for disability

5. Disability needs to preclude useful and efficient service. If an employee is not expected to recover within one year of onset, SSDI can be applied for. However, if the employee is demoted, this proves lack of useful and efficient service and makes the case for being accepted for SSDI. The employer shoots him/herself in the foot.

Lastly but not least, infertility is a protected disability status covered under the ADA (I'm throwing this in here in case you weren't aware of this tidbit of information).

Source: Federal and state laws, ADA, EEOC, Attorney General, Department of Employment Security, found through various Google searches.

(on edit, added sources)

.

[cliffordu]

1. K&R

[phrigndumass]

7. Hi Cliffy!

You sexy thing :loveya:

[cliffordu]

14. Right back atcha, you schweet thang!!!

[phrigndumass]

15. LOL Yer killin me :P

:rofl:

.

[ThomCat]

2. Unfortunately, many employers seem to think that if you have

a disability you are a worthless person who isn't of any value as an employee, and they'll treat you that way. They'll do whatever they think they can get away with to either get rid of you, or convince you to quit.

Your post is excellent. People have to know their own rights, and if they can't advocate for themselves they absolutely Must have someone else who can help them advocate for their rights.

It's ironic that we owe so much of this to the first President Bush who not only signed the ADA into law in 1990, but strongly supported it to help get it passed so that it could reach his desk.

That was the last time any President was so pro-active for the civil of any group of people.

[phrigndumass]

5. The key is ... you would need to ACCEPT what they want to do to you ...

... for them to get away with it (or infer that you accept it by saying nothing in writing). You have a right to accept or reject any proposal they put forth based on your disability. If you reject, you could be fired, but you would have a solid claim in the court system against the employer. If you accept because you're afraid of being unemployed, well that's another subject, but I wouldn't accept just because of that.

Thanks ThomCat! :hi:

[kickysnana]

3. Having worked with people with Lyme Disease for over 10 years.

For practical purposes no you do not have rights.

If you want to wait 10 years for a judgment on the job you no longer have, the case eating up most of your "settlement". Do you think that new employers don't check to see if you had filed against an employer?

In this cut throat economy other workers will put a target on your back if you actually succeed in gaining accommodations.

Right now if you are disabled you are fighting for adequate treatment from our broken health care system as well as trying to work in hostile work environments by employers and coworkers who claim you are unfit and using the law to take advantage of the company and coworkers and as far as I know nobody comes to fight in your corner. The stress further affects your health.

In the end you do your best to mask your disability until you cannot and then take disability. Can anybody get or afford short or long disability insurance any longer? It takes about 5 years to get SSDI unless you are terminal, mentally incapacitated or paralyzed.

It was a good idea when America was America but when employment is "at will" as it is most of the time now you have no rights. I think folks should consider that before they make decisions that will affect their future.

[phrigndumass]

6. I understand, I've had the target on my back

Yes, it does require a battle and lots of money to have your rights defended in a court of law, but especially if you are working for a small- to mid-range operation, they have to foot their own bill to defend their actions as well. It may end up being settled, and you would be without that job, but you may find yourself in a better job. Or if you are permanently disabled (or long-term), you may have won those rights for someone else.

I've had accommodations that absolutely irked other employees. I've worked my way through that by being open and honest with them ... being a teacher ... and saying I would support the same accommodations for them if something similar happened to them. Yes, it's not fair, you could tell them, but we all have to work with what we got. You need to talk to them before resentment sets in.

As for using the law to taking advantage of the company and coworkers, they're partly right. Taking advantage of accommodations is protected by the ADA. and taking advantage of something you need is nothing to be ashamed of. And you're right ... nobody comes to fight in your corner.

I masked my disability for four years now, and my psychiatrist found that I had decomensated well beyond burnout. It's a good thing my employer provides a benefit for disability ... my payments begin after three months of disability. SSDI takes forever, but it's retroactive and you have to keep trying, even though they deny most cases on the first shot.

I want a future where my job is enjoyable, fruitful, and satisfying. I think we should all shoot for jobs like that. Sometimes we waste too much time feeling stuck in a dead-end job that we hate.

:hi:

[OutNow]

10. Yes you have rights, but only if you fight for them every day

The situation isn't quite as bleak as you describe, but having experienced it myself I can tell you you can't just wait around expecting all the folks involved to do the right (or legal) thing.

You have to be a fighter. Even when you feel like crap due to your medical problems, you can't let anything slide. You must become an expert on company policy, federal labor law, social security, medical insurance, etc. etc. while you're still doing your job.

It took me 18 months to get SSDI. Hint: get a lawyer right away.

[phrigndumass]

13. Exactly!

On both ... you have to become your own expert, and you need to get a lawyer right away!

:hi:

[myrna minx]

4. Thank you for posting this info, my friend.

I wish you all the best. :hug:

[phrigndumass]

8. Thanks, myrna! Wanna cuddle on the lounge sofa?

:loveya:

[myrna minx]

12. I'm a shameless spooner with my gay DU boyfriends.

:loveya: Shameless.

[phrigndumass]

16. Is that a spooner swooner then?

hehe ... no schwing on the schwooner :D

[OneGrassRoot]

9. You're a wealth of information....

:yourock:

Thank you for sharing your experiences and your wisdom.

PLEASE keep us posted. I'm sending good vibes your way.....with :hug: :hug: :hug: :hug: :hug:

K&&R

[phrigndumass]

11. Thanks OGR :)

I'm feeling your good vibes ... and btw, you rock harder! :D

[phrigndumass]

17. I WON MY BATTLE TODAY! =)

I met with my boss in his office (I am still away on disability), and he said his intention when I return to work after disability leave was to demote me to my original position when hired 16 years ago, reduce my hours by one-fourth, and cut my salary in half.

Of course, he buttered it with "you need less stress" and "the company has responsibilities that I'm not sure you are capable of handling in your condition" etc. etc.

I looked him in the face and said I DO NOT ACCEPT THIS. Then I read to him from the quote above: "An employer is prohibited from limiting an employee's duties based on a belief it is best for the employee or based on a presumption of the employee's disabilities. The employer is also prohibited from demoting the employee, denying pay raises, or limiting the employee's bonuses based on the employee's condition.

Wow, did that piss him off! He blurted out, "I know the law! Things can't continue the way they are now!" And he mentioned that if I was going to be rigid, then so was he, and all of the accommodations I've received are now null and void. And then he said, "Don't push me on this," as if that were a threat.

I told him the point of being on disability and going to counseling is so that things can return to normal, without accommodations, and I can return as a healthy employee. I told him that is my goal.

So I WAS NOT DEMOTED, and MY PAY WASN'T CUT, and MY HOURS WEREN'T CUT. But I'll be taking notes from here on out, just in case my employer takes any adverse employment action against me.

:woohoo:

.

[Zhade]

18. DOCUMENT EVERYTHING. Even stuff that seems irrelevant.

Trust me on this -- I beat my boss trying to fire me twice for blowing the whistle on his violation of meal period laws, and the only way was to collect as much evidence as possible. Even simple notes of what happened when, such as what was said in a closed-door meeting, the time, and how you felt about the incident can help. Most bosses don't do likewise, so you're more credible.

I'm still in the middle of it. They never let up.

NEVER LET THEM WIN.

[phrigndumass]

19. VERY Good Advice, thanks!

I'll be carrying a notepad around with me everywhere. Hope you wind up on the winning end, Zhade!

:hi: