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#1
12-02-2005, 11:31 AM
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Hey Dopers, is my company really this dumb?
So back in October, I was sick and my Drs told me that I can no longer work nights. i work in the restaurant business for a major restaurant company. I am usually scheduled to close 2-3 times a week. I brought them a note from one of my drs saying that I was not allowed to work past 9pm. The HR director for my region told me that they would figure out what they were going to do. First he offered me the opportunity to work in 2 different restaurants since there are 4 close to my house. When I said yes to that, they told me that it wasn't possible since they didn't know how to pay me in 2 stores. They then offered me part time. When I said yes to that option, I was told that there were no part time opportunities in my area. So now they've decided that the best option they could come up with was having me go on medical leave until my Dr. clears me to work nights, which he won't, or until they can find a way to meet my accomodation. Even that was difficult, they wanted me to post date my medical leave 3 weeks. My dr. didn't feel good about that either. So now I'm being paid to stay home instead of them making a simple accomodation. They also called me yesterday and asked for my keys back and asked me to clear out my office. This sounded ominously like I was being terminated. So should I get a lawyer and see about suing them? Doper lawyers, I'd love some advice from you, of course you're not my lawyer and I'm not your client and it wouldn't be advice written in stone. Thanks.
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#2
12-02-2005, 11:39 AM
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Just out of curiousity, what sort of illness prevents you from working nights? If you don't feel comfortable answering that, just tell me to shut up.
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#3
12-02-2005, 11:46 AM
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#4
12-02-2005, 01:23 PM
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IANAL but if they are still paying you then you don't have damages and don't have anything to sue them about.
If they are asking you to clear out your office I would suggest you ask them to put it in writing. In fact, get everything possible in writing from here on out.
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#5
12-02-2005, 01:36 PM
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Having a variable schedule causes bi-polar episodes? To be frank if that's the case the restaurant business is probably not the right profession for you.
It does sound like you're being fired, and without more info it doesn't sound like you got much of a case unless you plan to make some ADA discrimnation argument. What do you think your legal rationale would be in suing them?
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#6
12-02-2005, 01:43 PM
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I think there would be a legitimate ADA case but unfortunaelty it would be very expensive and impractical for most individuals to pursue it and win. It could take years.
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#7
12-02-2005, 01:44 PM
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I once worked for a company that didn't fire me, but took away my keys. They refused to say if I was let go or not even thought I asked repeatedly. I went ahead and filed for unemployment benefits, and the company protested them. We had a hearing and I won the benefits.
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#8
12-02-2005, 01:54 PM
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If you're thinking of suing, ask for a lawyer. You are not likely to get good advice on the Dope.
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#9
12-02-2005, 01:56 PM
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With mental illnesses, behavior modification is usually a huge part of treatment. Medication and counseling are crucial, but they don't make the illness go away. The person needs to find strategies that either minimize the likelihood of bad episodes, or simply allow the person to cope with life with the illness. For example, I have clinical depression. One thing that makes me feel worse is getting too much sleep. And I love to sleep. So, if I have the opportunity to sleep 10 hours a day, I will. And if I do that, especially over the course of a few days, my depression symptoms get worse. So sometimes I have to force myself out of bed or stay up later than I really want to to make sure I don't start that cycle. But that's just a thing I've worked out for myself through trial and error. In a more general sense, one thing that tends to help many many people with all sorts of mental illnesses is to stick to a routine. So, it doesn't surprise me at all to hear that DrLoveGun's symptoms are made worse by a variable schedule. Anyway, it sounds like DrLoveGun's employers aren't making "reasonable accomodations" for him. If they really can't use someone who can't work a variable schedule, that's one thing. But saying they can't accomodate him because they don't know how to do the paperwork? That's BS. DrLoveGun: I'd think that there are some free legal resources available to people who may have ADA related troubles. Maybe you could get some real legal advice for free through some agency.
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#10
12-02-2005, 02:11 PM
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#11
12-02-2005, 03:26 PM
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Dr. LoveGun,
Unforutunately this is not the first time I've heard this type of scenario. An aquaintance of mine was "pushed" out of a job for asking for an altered schedule to accomodate her need for a set routine. (She's also bi-polar) She did not contact a lawyer but she should've. She was lucky and found another nursing postition where the employer understood and was willing to work with her. The thing is, you need to make a living and your employer is not working with you. I'd at least consult a lawyer (most will give you a free consultation) to see what your options are. I have to say that I think your employer's excuse of not knowing how to pay you for working in two stores is a heap of horseshit. Good luck to you. Keep us posted if you would, please.
__________________
There is no theory of evolution. Evolution is a fact. The theory is of how it happened. “Be who you are and say what you feel because those who mind don't matter and those who matter don't mind.” -Dr. Seuss "Man will never be free until the last king is strangled with the entrails of the last priest"-Diderot
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#12
12-02-2005, 03:31 PM
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#13
12-02-2005, 03:37 PM
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I don't understand why they made two different offers to you, then reneged on both of them. Maybe they were hoping you would turn them down?
I'd definitely see a lawyer.
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#15
12-02-2005, 04:18 PM
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#16
12-02-2005, 04:20 PM
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I'm confused how needing a set schedule automatically precludes working night shift. If what you need is a consistent schedule couldn't you work Mon-Wed days and Fri & Sat evenings as long as they were the same shifts every week?
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#17
12-02-2005, 06:53 PM
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#18
12-02-2005, 09:10 PM
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As an HR person, I think dasgupta gave you the best advice. California generallly has more employee-friendly laws than the federal laws, so connect with local professionals.
Another organization that is helpful is the Job Accommodation Network. http://www.jan.wvu.edu/ They help employers and employees work together to develop successful accommodations. While hiring a lawyer is expensive, and it might eventually be a good idea, you can probably get a long way by educating yourself about your legal rights (and obligations) and how other employees have been successfully accommodated in similar situations in the past in other companies. Bring laws and examples to the manager/ HR person printed out from the Internet. I would advise against trusting them to research it themselves. This issue will continue to face you in other jobs, so you might as well take the time to educate yourself about the legal aspects of it now. Some of the previous respondents to this thread have been questioning "I don't understand why you need to not work nights ..." People at work will probably be like that, too. My advice is don't get into those discussions about what works and what doesn't with anyone but your doctor. Once your doctor recommends what accommodation is needed, talk with folks at work about how to make it happen, not why it needs to happen. And, yes, get everything in writing. If they tell you something in person or over the phone, note it on your calendar with the date, time, who told you what.
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#19
12-02-2005, 09:17 PM
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Exactly. This sort of thing is what brought on DLG's major manic episode that landed him in the hospital. Basically he's have every Tuesday off, but that was it regarding consistency. Many many times he'd work from 4pm until 2-3am, only to have to open at 7am. Beyond that, no two weeks were ever the same or predictable. Days and times were almost random. The result was that he rarely got more than 5 hours of consecutive sleep, and he had no rythym* to his life- daily, weekly, or circadian-ally. Nor he could he participate in consistent activities such as religous services, social activities, family time, etc. For a person with bipolar, and DLG in particular, a regular schedule biologically as well as a regular consistent routine and daily life rythym* is *essential* for him to prevent relapse. This was something that was stressed to him at the hospital where they specialized in BP1, but by his therapist and outside med guy. Initially he resisted this, and after a full week of randomness began to have some paranoia and manic issues. And he was a royal asshole to live with. It's not that they *can't* accomendate him- the HR director mentioned that there was another manager who needed a PT schedule and indeed has it. It's that they didn't expect him to say yes. Now they are hoping they can frustrate or bore him into submission, or that the reduction in pay that leave entails will be enough of a hardship for him to quit or cave. Also, they are super-lazy pig-humpers who don't want to fill out two payroll forms. They also are afraid if he gets a PT or set schedule, others will demand it as well. * I have never, even once, spelled this correctly.
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#20
12-02-2005, 09:24 PM
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Thanks for the advice.  DLG has spoken with the ADA federal line, and they assured him that he is well covered. His employer consulted legal and have told DLG they know they have to comply and that he is covered. My advice to DLG has been pretty much the same- NOT to make ANY excuses for *why* he can't have a crazy schedule, and not to "try and convince the doctor to change orders" as his boss suggested. I advised DLG to remind his boss EXACTLY how unfavorably various flavors of feds/regulators/etc look at medical fraud and harassment, and that if it continued he would "pursue other channels of resolution." They got the message and backed off.
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#21
12-02-2005, 09:28 PM
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DrLoveGun was NOT fired. They want his keys for the manager-in-training. They apologized profusely for the poor wording, and for suggesting, even by accident, that he was fired. His boss reiterated that the company was very interested in finding an accomendation in the future.* *But I wouldn't hold my breath. This is the same guy who wanted DLG to ignore his dr.'s orders and be a "team player."
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#22
12-02-2005, 09:49 PM
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Today, specialists have found me an easy, maintainable treatment that should work for life with some tweaks. It took some time but it has worked for for 18 months now. I have had four family members cry after they saw me before and after. Tell him to continue to seek the best care and always strive for improvements. A treatment that just lets you "get by" isn't the goal. Psychiatrists have always told me that Bipolar disorder is the best major mental disorder to work with because it has a good chance of permanent remission as long as both the doctors and patient are committed to it. I went through maybe 10 combinations of treatments before I found the effective one.
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#23
12-02-2005, 10:11 PM
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You can give him whatever wishes you'd like yourself, you know. He's currently playing on the floor with our son. He's pretty lucky- once on meds he had almost no side effects and we 'bingoed' on the correct med the first time. He had to add an antidepressant to the mix a bit later, but otherwise it's been pretty easy. He has a good team too.IMHO, though, he does need to see a dermatologist or infectious disease person too, though. DLG has had a *constant* subcutaneous staph infection for several years now. He takes hard-core antibiotics daily to control it, but it doesn't actually go away. While I have no hard evidence to back me up, my suspicion is that a serious constant infection involving quite a bit of his skin and sometimes in his blood could contribute to brain instability/mood issues/etc. We already have been told the mono infection + high fever he had the week before he was hospitalized probably made things worse as well. To my mind, a chronic infection may have a similar effect. In any case, I don't think good treatment (even if it has to be IV or something) could *hurt* here.
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#24
12-02-2005, 10:24 PM
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Is my company really this dumb?
Maybe. I just want to point out that some companies allow absurd levels of bureaucracy to hamstring their operations, and the result is astonishing stupidity. It may be the case that the HR Director honestly thought you'd be able to work in two restraunts, but when he tried to arrange it he found some obscure company rule against it. Then he honestly thought he could get you a part-time position, but that was also blocked. Never ascribe to malice what can be explained by stupidity. Of course you know more about the situation than I do. I may be wrong; I'm only saying that this is a possibility.
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#25
12-03-2005, 04:58 PM
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Of course, I'm glad that we have the ADA. It's just not the cure-all people sometimes think it is. And of course I am in no way saying that you were behaving badly or trying to get away with anything; just the opposite. Your employer should also remember that, not only are individuals with disabilities capable employees, but they are also customers. It would be a shame if they did treat you unfairly or let you go and you told everyone you know (including the SDMB) that Company X sucks with regard to individuals with disabilities. They could lose a pretty significant customer base that way. [slight hijack]Happy Birthday (almost) inkleberry!![/slight hijack]
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#26
12-03-2005, 08:12 PM
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#27
12-03-2005, 09:47 PM
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I strongly suspect stupidity over malice throughout this scenario. People that get hired for management are nearly always hired and trained to be administrators and they rarely have a clue (and almost never get training) in genuine leadership or management. A few of them have some native skills to manage, but most are at a loss to figure out a way to address a novel situation.
That said, I will make a minor defense of those in the company who were frightened by the idea of paying out of two cost or profit centers. Payroll is a bitch and most companies either farm it out to ADP or one of their junior competitors or buy off-the-shelf software from G.E.A.C. (major companies) or Peachtree (small outfits). (And if they are dumb enough to be using SAP, it would take a direct Act of God to make any change to any aspect of the payroll.) The payrolls are set up based on reporting to the general ledger and it is generally assumed that any employee will report to only one cost or profit center, so their identification codes often are based on the loction where they work. I know that in G.E.A.C.'s older Enterprise software, it would have been physiclly impossible to pay the employee out of two profit centers unless the employee was entered as two separate individuals. (This may or may not still be true, of course. Payroll software was long ago modified to handle people who transferred from one departent to another, but that is not the same thing as being paid out of two centers simultaneously.) This is not to say that it would be impossible to work out of two outlets; it is to note that the need to either change software or do something "drastic," such as cancelling different W-2s and replacing them with a single manually created document, would generally be extremely frightening to the typical administrator both in the store and in HR.
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#28
12-03-2005, 10:19 PM
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All of which would make perfect sense if: a) managers-in-training (including DLG back in the day) didn't routinely work at multiple locations b) DLG's boss works multiple stores c) They weren't covering DLG's shifts using "guest managers" from other area stores. But, hey, let's not rock the boat- DLG is getting paid to be a full-time stay-at-home Dada, with benefits & bonuses for at least 3 months. I'm happy if they are...
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#29
12-04-2005, 01:15 AM
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IANAL This is not legal advice Consult with an attorney in your state Member FDIC If rash develops, discontinue use but I did have to study a little bit about the ADA (Americans with Disabilities Act) for my master's in special ed. First of all, your employer is only required to provide reasonable accomodations. Not having worked in the restaurant field, I don't know what is reasonable is but I suspect that by making these offers that they could not follow through on, they are setting up a case to say that there are no "reasonable" accomodations available, therefore they can legally terminate you.
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#30
12-04-2005, 01:27 AM
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Should it happen though, we will consult a lawyer. Although I must say a similar thing happened to me. I was injured on the job, liability was not an issue- the company admitted from day 1 that all injuries were directly resulting from workspace and that the workspace in question was subpar. To have me return to work, they simply needed to replace the faulty equipment with proper equipment, a modification that would have cost $149. They chose not to, insisting if they did this for me then they would have to do so for others, it was an excessive expense, blah blah blah. They kept me on disability for an entire fucking year, although I wanted to work and was able to do so, provided I was not subject to injurious conditions. Long story short- their myopic decision to try and bore me into quitting or capitulate and work in hazardous conditions or have a doctor certify said conditions as safe instead of repairing the problem meant OSHA came in and leveyed $40,000 in fines. I also received a 5 figure settlement for the permanent damage I sustained, and they were subsequently sued by multiple other employees who also were injured by the same workspace after I was. Oh, and they had to then upgrade all workspaces in the entire company. It's profoundly stupid, but not an uncommon gamble, as far as I have seen. Nearly halving someone's income while also preventing them from working in your place or somewhere else while on leave tends to make the employee depressed and break their will. Then they come back, needing the money badly, and drop their request for accomendation, instead of advocating for themselves and getting a lawyer.
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#31
12-04-2005, 02:05 AM
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(The boss might be at a level higher than cost/profit center and come out of a separate budget--stupidvisors generally are above the cost/profit center level--but points a and c make hash of their objection.)
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#32
12-04-2005, 02:16 PM
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I think it was less of a concern how to pay me my salary, and more of a concern how to figure out bonuses. Of course they can figure out bonuses if I'm on medical leave @60% and they can figure out bonuses if I were to work part time at whatever percentage that works out to be. So I assumed that splitting between two stores would be like doing two seperate part time bonuses.
As of now, they are waiting for my dr to change his mind, which isn't going to happen in this lifetime. So I'm basically on med leave until the benefits run out, and then I'm going to file unemployment. Since the accomodations that I've asked for are reasonable and would not cause undo hardship on a company with over 1500 locations nationally and 15 locations within 1/2 hour of me. We shall see.
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#34
12-04-2005, 04:22 PM
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#35
01-09-2006, 04:37 PM
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Here is some much overdue follow up. They didn't get the required form to me in time, and then sent me a follow up form which I got 8 days after they mailed it. I was placed on unpaid leave 12 days prior to this second form being sent to me. I had 5 days to get it back to them, but I got it 8 days after it was sent. You see where this is going. My dr. didn't say on my form that I needed to be on a leave from work, he just said that I needed the above mentioned accomodations to be met so I could return to work. The poor woman working at the companies leave of absence desk knows none of this. She just thinks I didn't get the form in and I don't get paid.
Now she is very upset that the regional HR director told me to go on leave instead of finding a way to make the needed accomodations, especially since he offered me some options that I agreed to, only to have him say no to them. I get the impression from talking to her that she realizes that someone has made a big mistake, and it isn't me. I think it may be time to talk to a lawyer that specializes in this sort of thing.
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#36
01-09-2006, 05:09 PM
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They're hosing you. This is enemy action. Get a lawyer. Now.
And my wishes for the best of luck to you in all things. [thumbs up]
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#37
01-09-2006, 05:26 PM
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The good news: I am not a lawyer.
The bad news: I am not a lawyer. Please, take this advice with a grain of salt, and seek legal advice in your town. My suggestion is obvious. See a lawyer. However, don't hold out much hope. I don't know who you work for, but the bigger the company, the bigger the pockets. I hate to rain on your parade, but the company is firing you. They don't want to deal with your health issues, but they'll never say it. They've also more than likely have had discussions about this with the legal department. They are getting their ducks in a row. They will be expecting a suit. With that said, it doesn't mean you can't win. But there are some potential obstacles. Are you still technically employed? Then what I would suggest is speak to your doctor PRONTO about putting you on short term disability. That buys you about 6 months of full time pay with benefits. Then, if your condition requires it, go on LTD. You will get about 50% of your salary (YMMV), but you will get to keep your benefits. Right now, your health is the most important thing. Your financial footing is important too. Take care of yourself. Also, one of the biggest mistakes people make is being honest with an HR department. HR departments, contrary to popular belief, are not there to help the average employee. They are there to keep the ship sailing as smoothly as possible, so if you are disabled, unfortunately, you are rocking the boat. Not your fault, but hey, business is business. Someone's budget will have to carry you and the fact is, no one wants the debt. So they will look for a way to let you go, and do it in the best way they can without putting themselves in line for a lawsuit. If you are able to get disability, then you will NOT be able to sue. At least until you are no longer employed. But if you are receiving disability, you can't sue for wrongful termination. If you feel you are wrongfully terminated, you'll have to prove it, and the company is putting a case together as I type this to cover their asses. Oh, and while you are on disability, you can lose your job. It can be "eliminated", or you will be "restructured" out of a position. "Oh well," they say. "You would have lost your job if you were employed, so you are just a victim of circumstance!" If for some reason you end up looking for an attorney, do your research. And remember, lawyers are motivated by money. If you are willing to give them a third of your settlement, they are much more likely to bust their ass on your case than if you are just paying someone to send a few form letters. The company will ignore them, or stall and delay, costing you money and attempting to bleed you dry. It's best to get an attorney financially involved. And if an attorney IS willing to take your case, it will give you an idea of how sound a case you may have. Attorneys won't take your case if it's a dead end. They don't like working for free. It sucks, but unless you have really deep pockets, don't go the retainer and pay-as-you-go method. The company has staff attorneys. You do not. It gets expensive very quickly. Your company may indeed be dumb. But you are talking about the bozos in HR, not the attorneys. Sincerely, I wish you the best of luck. It sucks to acknowledge a real problem and be pushed out anyway. HR loves to throw around the EEOC crap and we love our employees, but hey, not if it's going to cost them money!
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#38
01-09-2006, 05:35 PM
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oh, and before I get slammed by the attorneys on this board with my generalization of "lawyers are motivated by money", I certainly don't mean all of you. It was a generalization. And in these kinds of cases, where large dollars may be at stake, I've seen both sides. An attorney working for a percentage of the fees busted his ass. An attorney working for hourly payment for a client did the minimal work and went through the motions. He pushed, but not too hard.
I shouldn't have impuned all lawyers with the blanket statement. Sorry in advance of the avalance of protest. There are honest, hard-working lawyers. And please email me with the name and address of these fine people so I can know them too!
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#39
01-10-2006, 03:06 PM
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So they've decided to play a rousing game of Stupid-ball. Its where one mistake leads to several others from different players. I hate this game. Only ended by attorneys, and I hate attorneys. No offence to any Doper attorneys.
Anyway, they've decided that I don't qualify for short-term disability since they agreed to make the accomodation set by my dr. in November and because my dr. set a time limit of "indefinate" on when I could resume normal duties. This is coming from the leave of absence people at corporate. She is being told that they offered to make the accomodations for the month of December as well, they didn't, and I opted to take the suggestion of a leave. The even better part is that my area director is going to call me in the next day or so to determine the future of my employment with this company. Does that mean they're firing me for getting sick? I think it does. So they want me to leave, one way or another, they're now lying to the disability dept. of their own company, and I have to find a lawyer. Oh Joy!
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