Not Disabled 'enough'

April 27, 2009 10:36 AM

What should I do about employment options? Sick & old but not sick OR old *Enough* 56 yr old woman who has signed a non-compete contract, in the same industry for 29 years and has been told I'm on probation for 90 days. Took short-term disability to rest and secure my position but thus far was denied, no money coming in. No retirement money, no other way to make money...more below

In February, I was not performing at work due to the pain from cancer and fibromyalgia. I drive 500-1500 miles a week and my performance and compensation is based upon economic growth from last year to this year, of course the economy has tanked and many of my customers are out of business, which impacts negatively on my growth. It is an impossible dilemma of which I know after the 90 days probation, I will be terminated. My doctors told me I must take short term disability, but the STD company tells me I'm not in enough pain to be out of work. I am appealing aggressively. Meanwhile I'm looking at other jobs to perhaps work from home in my waning days of my illness, but have been presented nothing but scams. I have no vocation other than growth based sales. I signed a non-compete contract, of which I don't even want to work in this field again, but am having issues with what to do. I am a full time caretaker for my son, and my primary sales job is a 12-17 hour a day gig. I'm completely burned out but not enough (according to the law) to become disabled. FLMA does not apply. I have no family support and no means of support because I do not have a "label". Need some 'hivehelp'! I have seriously considered suicide but inherently know the harm it will do my son, hence not an option. I feel I am trapped in this hell and see no way out. Between the pain and worry I know I'm not thinking clearly and ask for some suggestions. I am being medicated, and in therapy.

posted by ~Sushma~ to Work & Money (16 answers total)

I am not an attorney, but it is my understanding that, depending on location, non-compete agreements can be difficult or even impossible to enforce-- especially if they prevent you from earning a living. You might want to consult an attorney who practices employment law in your jurisdiction to determine your standing.
posted by dersins at 10:47 AM on April 27, 2009

You need a lawyer. You may need a couple of lawyers, including one who specializes in disability law and one who specializes in employment law who can look over the noncompete.
posted by decathecting at 11:00 AM on April 27, 2009

I also am not an attorney but my understanding matches what dersins says. I witnessed a salesman get fired for "insubordination" type reasons, and not only go to work for a competitor but go through his list of former clients and turn almost all of them to his new employer. The salesman had the standard non-compete clause in his signed contract but to my knowledge the former employer didn't pursue any legal action because of the situation (that they were in the position of having deprived the guy of his livelihood.)
posted by XMLicious at 11:19 AM on April 27, 2009 [1 favorite]

This might be a stupid idea, but can you enroll in school, like some kind of workforce development training course at a local community college? My understanding is that, depending on what state you're in, it might be paid for. Maybe you can take out loans for living expenses and do coursework online? Then, maybe you can have a new skill that may enable you to do work from home.
posted by anniecat at 11:31 AM on April 27, 2009

Best answer: I don't know how much a lawyer could help, besides negating the non-compete clause. This is not the economy you want to pay an attorney to get a job back that is based on commissions.
If I were you (and I know where you're coming from. I'm just a few years younger) I would go to my local junior college and see what is available for job training. You should qualify for student aid but there may be a program in your state or county that will assist you as well.
You have valuable skills and experiences that should be put to use. There's years yet before you need to retire and you have so much knowledge that could be passed on.

I've always thought that if money got very tight, I would take in a boarder.
posted by readery at 11:32 AM on April 27, 2009

This site is a godsend for those who have invisible illnesses: But You Don't Look Sick. There are tips and help from those who are or have been in your boat. They don't substitute for legal help (which you need) but they may have tips on coping, getting support, finding a job and so on. There is also a section devoted to tips on filing and fighting disability claims. Good luck.
posted by Rosie M. Banks at 11:35 AM on April 27, 2009 [2 favorites]

The non-compete is the least of your worries... It's just a bullying tactic, and would have more significance if you were a top producer (not saying that you're not) who would take client/prospect lists to a competitor.

If you are able to, and if you need to or want to, there is nothing stopping you from working in a similar field to pay the rent. It is very unlikely they will do anything to you in regards to the non-compete.

While you are off, why not try to itemize your skills (using What Color is Your Parachute as a guide). You may have an aptitude for sales and may be able to transfer these skills to a less stressful working environment.
posted by KokuRyu at 12:06 PM on April 27, 2009

Disability Rights Legal Center/Cancer Legal Resource Center
posted by fructose at 12:25 PM on April 27, 2009

Took short-term disability to rest and secure my position but thus far was denied, no money coming in.

What grounds did you apply for disability on, and why were you denied? The threshold for physical disability is super high, like you need to be essentially bed ridden (unable to perform a "sitting job"). If your appeal is denied maybe you could discuss with your attorney the possibility of filing again using your mental health diagnosis as grounds for disability? I'm assuming that when you say you are "being medicated and in therapy" you are talking about psych meds, but maybe that's not what you meant. Either way, as long as you aren't abusing drugs or alcohol there seems to be in my experience a lot more room for argument on appeal with mental health disability denials.

Also, if your hopelessness has you seriously thinking about suicide you need to be communicating that to your therapist.
posted by The Straightener at 12:49 PM on April 27, 2009

What type of cancer do you have/did you have? It seems to me that if your cancer pain is ongoing, it is serious enough that your oncologist would help you to support your disability claim. (By "serious enough," I'm comparing it to, say, a lumpectomy, which involves pain at the surgical site for a short while afterward. If it is your follow-up treatment - chemo or radiation - is causing you continuing pain [I know that, for example, Taxol can cause a lot of bone pain], please enlist the aid of your doctor or his staff in filing your long-term disability claim.

You have experience in sales - would telemarketing from home be an option while you sort out your disability claim?
posted by Oriole Adams at 1:28 PM on April 27, 2009

I heard about FlexJobs on NPR - seems like they're actually fairly legit -- anyone else know? You have to pay to join but based on the news piece on them, there are a number of work-from-home and non-traditional jobs on there. Maybe worth a look?

And seconding that the non-compete, at this level, won't likely be too much of an issue. There are often free or reduced-pay law clinics - we might be able to find one for you if you post your location.

Is moving to live with family an option, at all?

I'm so sorry you're dealing with all of this.
posted by barnone at 4:06 PM on April 27, 2009 [1 favorite]

Have you talked to your local "one-stop" career center? They can help you understand your options for job training, and may be able to help you figure out job options. There's a particular program I'm thinking of called the "Senior Community Service Employment Program" which provides subsidized employment and training to people over 55 with household income under 125% of poverty level-- but there may be other programs too (especially if you officially are considered a "dislocated worker" and/or low income), and anyone can get general training and job search help. (Some more info here.)

Also, when you say you're a full-time caretaker for your son-- do you just mean he's a minor you need to take care of, or is he disabled in some way?
posted by EmilyClimbs at 7:35 PM on April 27, 2009 [1 favorite]

I don't know if this will help you where you are but some states have their own disability programs that are easier to be accepted for than the federal one. I'm in Indiana and know of three different people who got on state disability over the years. Two of the people had mental health problems and the other had physical ones. It might be worth looking into.
posted by stray thoughts at 9:10 PM on April 27, 2009

Response by poster: I applied for STDisability (STD just sounds NASTY!!!) through work. It is a measly $174.00 less $58.00 for health insurance and they are still giving me hassles. I wrote them a nastygram and still they are bantering around their decision. I have Waldenstrom's macroglobulinemia which is a time bomb waiting to go off, and also Fibromyalgia, which both diseases have the same symptoms, so proving it is hard enough. First, I feel better about the non compete, and have decided that I don't want to work for a competitor anyway, the whole industry is tanking, but the benefits are sweet. I was a top performer in 2006 (and always in the top 20%) then degraded after that. I don't want to be 'on the dole', I can work successfully given the right position. I could also steal my customer base, become a minority business and go forward. 'readery' you are correct in your assumption that I would have great skills to pass on, but am unable to discern how to monopolize upon those skills....just not thinking clear enough. EmilyClimbs, my son is brain injured and has reading and writing skills of a 3rd grader, he is 32 and I take care of his medical bills, general living skills, medications and oversee his executive functions, he is also bipolar. 'Rosie' that link is wonderful thank you. All of your suggestions are wonderful, I knew I could depend on the hive for help. Keep them coming!
posted by ~Sushma~ at 8:44 AM on April 28, 2009

I'd investigate whether getting a lawyer to fight to get on disability is a good idea. The insurance company always says No, because it's in their interest, but you an and should fight it.
posted by theora55 at 11:42 AM on April 28, 2009 [1 favorite]

I only asked about your son because I know that in many states, a parent can get compensated for caring for a disabled adult child (is he on Medicaid?) Here's one place to look for more information: http://www.cms.hhs.gov/MedicaidStWaivProgDemoPGI/05_HCBSWaivers-Section1915(c).asp
posted by EmilyClimbs at 8:18 PM on April 29, 2009