What to do about my excruciating work situation?

September 14, 2009 8:52 PM

What are the best strategies for my current work situation? Question relates to disability, unemployment, and illegal activities (not mine).

Apologies for any lack of detail, but, you know, anonymity.

I've been at my current job for about a year and a half, where I'm a good performer. Since requesting reasonable accommodation under the Americans with Disabilities act (I work in Illinois), my manager and the HR department have started building a tardiness-related firing case (no other employees in the department even have their arrival times tracked), I've had my shift switched back and forth (in addition to some other petty stuff that's jerky but not, apparently, illegal), brought to meetings with HR where I'm yelled at and not allowed to talk, and other Office Space-ish nonsense. One lawyer (although not my lawyer) told me it was clearly retaliation.

Further: the company is misleading in the descriptions of some of its products (although I'm not sure if it crosses the line into actionable fraud as IANAL), they haven't hung the required labor-law posters, and they (as in, the company, not individual users) install pirated software on computers (I've brought this up to multiple managers with no result, and have screencaps of cracker signatures from multiple installs).

Possibly more important: the stress just from going in every day is becoming unbearable. I feel like I'm going to "lose it." My health's been affected. I'm sick of the frustration and I'm sick of taking their shit, and I've run the situation (in much more detail, obviously) by some of my more level-headed friends, and they agree that I'm being treated quite poorly.

So: should I wait until they fire me (as they've told me they will the next time I'm at all late - it's a "right to work" state so that's their right, I guess, ADA issues aside), quit and try to collect unemployment insurance until another full-time job comes up (Illinois seems to allow this if the company was participating in illegal activity), or stick it out, hope their assholism toward me crosses the line into blatant illegality (after reading a recent Metafilter post on workplace bullying, I realized my manager met about 2/3 of the criteria, but, again, being a jerk isn't illegal), and depend on the legal system to provide redress?

posted by anonymous to work & money (17 comments total)

Forget all the spy stuff about misleading products and unlicensed software. It doesn't relate to your case, doesn't help you, and just makes you sound petty and vindictive. If it's very important to you for some personal or ethical reason, you can send a few letters later, when you have other employment. Keep this un-entangled.

If you're really interested in the legal drama and stress (think about whether it's worth it, really), start documenting each day, each meeting, each time you arrive and leave on your own -- your own records. Be an ideal employee as best you can while keeping your own records and documenting as much about your own situation as much as you can. But unless this is a very high paying job and you have little chance of replacing the income with a new job.... well, again, consider whether you want to invest months of your life fighting over this, even if you win. Really, your time is probably not worth it for what, a few weeks pay?

I don't know Illinois rules, but you'd likely be heavily penalized for quitting by unemployment insurance, if not outright disqualified, so don't quit unless you have another job lined up.

Look for a new job, be a good (and documenting) employee in the mean time. If they fire you, apply for unemployment insurance while looking for work.

IANAL, just a (specialized) HR consultant type person.
posted by rokusan at 9:01 PM on September 14

I would NOT quit if you want unemployment. Proving they are doing illegal things in order to collect will be a big PITA. I would wait it out but contact a lawyer now to advize you on what to say and how to act between now and the time they off you and during the firing session. As for the illegal software, there is a group similar to the RIAA that chases these things and will collect. Here is a link to MSFT's site. At a former firm, we eventually settled for a 6 figure starting with a 2 number. I think the person who provides the initial info gets something although that is purely speculation.
posted by JohnnyGunn at 9:05 PM on September 14

Let me just say I feel for you. Let's just say "a friend of mine" is going through just about exactly the same thing, and it sucks so much ass.

My advice is:
a) Nothing is worth your physical and mental health. "My friend" was terrified thinking about the consequences of having no job and no unemployment, but start thinking about how you would deal with it. Dig into savings? Move back with the folks or friends? Is it worse than the assault on your well-being? Even if the unlikely very worst happens, the answer is still probably "no."

b) Definitely not a lawyer, but the term of relevance is "constructive dismissal." This means that if an intolerable work environment is created, and an employee resigns as a result, he may be able to get unemployment anyway. This tends to be very hard to prove, but it does exist. In your case, the Americans with Disabilities act thing is a MAJOR red flag and if they have a sensible lawyer they very well might just want to let you have the unemployment.

Good luck.
posted by drjimmy11 at 9:20 PM on September 14 [1 favorite has favorites]

You know, you could also just, show up late tomorrow. The risk is that they will call it a "firing for cause" and you will have that "on your record," for whatever that means. However I would assume you don't plan to do much talking about this job in future interviews anyway.

The upside is, even if they try to deny you unemployment, you stand a MUCH better chance in a hearing than you would in a Constructive Dismissal. Again, I am in no way a lawyer and am not recommending you do this. But it is a possibility.
posted by drjimmy11 at 9:23 PM on September 14

You know I just re-read your question and saw this:

brought to meetings with HR where I'm yelled at and not allowed to talk

Not allowed to talk??? This is not the 16th century. Do not go back there one more day. Report all their illegal activities and sue the shit out of them.
posted by drjimmy11 at 9:36 PM on September 14

Go make amends with your co-workers, be perfect for a while, find a new job pronto.
posted by xammerboy at 10:03 PM on September 14

You're not going to like what I'm about to say, but you're coming across as a high maintenance employee and your employer may well consider whatever it costs to get rid of you as a worthwhile investment.

Even telling your own story, you're coming across as a potential "whistle-blower" and we tend to tell our own stories in a way which present our own actions in a favourable light.

I have pretty rigid ethical standards when it comes to some things too, but I would resign rather than continue working for an employer who crosses those lines. You sound like you're more concerned with taking the ethical high ground over your employer's actions as a form of retribution.

Remember that just because you can't be fired for being disabled doesn't mean you can't be fired for being a pain in the ass - be careful that you're not the one who is creating valid grounds for terminating your employment.

If you're so stressed out that going to work has become unbearable, then you cannot do your job effectively - and your employer is going to notice that.

It sounds like you want to leave and they want you to leave, and that both sides are hoping the other will initiate the end game. Honestly, whatever you think you'll "gain" by sticking it to your employer probably isn't worth the damage to your mental health that remaining in this job will entail - in order to "win", first you have to lose. In this case, "winning" doesn't seem worth the personal cost.
posted by Lolie at 10:21 PM on September 14 [2 favorites has favorites]

I think rokusan has given you good advice: the expense and risk and hassle of a lawsuit is almost never worth it -- you are better off to just find yourself a new job.

I've run the situation (in much more detail, obviously) by some of my more level-headed friends, and they agree that I'm being treated quite poorly.

And, seriously. Never trust friends' assessment of your work situation. 1) They only get your side of the story, and 2) they have absolutely zero incentive to tell you when you're wrong: quite the opposite.
posted by Susan PG at 11:35 PM on September 14

Are you actually arriving late? Are they making up the tardiness or is that a legitimate issue with your performance?

I'm not excusing the other issues you've mentioned. A lawyer can help you decide if it would be worth the effort, expense and annoyance of a lawsuit. However, if you're showing up late you're giving them legitimate cause to fire you.
posted by 26.2 at 12:19 AM on September 15

Document everything. Don't quit. Don't be late. Google "hostile work environment."

Reporting:
ADA retailiation
Software piracy
posted by rhizome at 1:41 AM on September 15 [1 favorite has favorites]

I think you should stick it out until you find another job.

They've been smart (I don't mean right, I mean clever) to target and document your tardiness as their main complaint. For you to collect unemployment after being fired for tardiness, or for you to have legal redress for discrimination when their complaint is tardiness, you must directly tie your tardiness with your disability. Off the top of my head, I can't think of a disability that causes people to be late for work, but maybe I've just not thought of the right disability. Your argument will have to be "I am late for work specifically, unavoidably, and solely because of my disability. The company should allow me to be late, as it cannot be avoided by people with my disability."

You might look at the Seventh Circuit Court of Appeals in Illinois comments when finding against a man with AIDS who wanted tardiness and absences above what the employer gave others: "In most instances, the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability," and that "attendance at the job site is a basic requirement of most jobs." However, there have been other cases when tardiness was judged not an acceptable reason for firing (like in the case involving a paraplegic who was "tardy" because he could not easily access the timeclock while in his wheelchair). Maybe read over some of these instances and others to see which one is most similar to your situation.

In a way, you are in a catch-22 position. If you are late again, they will fire you for cause, and you cannot expect any money from unemployment or a lawsuit unless you can show this direct correlation. If you are not late again, they will not fire you, but you are proving that your disability does not require you to be late to work. That's why I say they've been "smart." The only way out of this corner is to stay, never be late, and work hard on nights and weekends to find some other job. This approach will have the added bonus of you being able to tell prospective future employers that you prefer they do not contact your current employer for references (because you are still there), thus burying the attendance/tardiness issue.

I'm sorry you're in such a bad work environment. I had a job once that was absolutely toxic, and I know how it starts to bleed into and affect every other aspect of your life and health. Get your resume out there.
posted by Houstonian at 3:51 AM on September 15 [1 favorite has favorites]

IANAL, but I would suggest speaking with a lawyer before you proceed, just to rule out any legal action you may have against them. Especially because you say that all of this started happening after you made a request for reasonable accommodation under the ADA. You don't specify what kind of accommodation you requested, but have they complied yet? Are they putting off having to pay to retrofit your office or something because they are planning on firing you soon? You hint that your question may be lacking details...these details you are leaving out may make or break a case against your employer. Only a lawyer who knows the details of your entire situation can tell you this. Document all the bullshit you've had to put up with, every last thing that they've done to you that would even remotely qualify as retaliation, and speak with a lawyer.

You also mentioned that no other employee in your department has their arrival time tracked. Are you friendly with a co-worker of yours who is also late coming into work occasionally? Would they be willing to admit this to help prove that management/HR was singling you out for the sole purpose of building a case to fire you? And are they building a case to fire you to avoid having to comply (and spend $$$) with the ADA?

I know that you're stressed out beyond belief, but if you do have a case against them, knowing this may make it easier to put up with the crap. Without all the details we can't really give you a definitive answer, but a lawyer can, and your case may be more cut and dry (in your favor) than you think.
posted by Gonestarfishing at 5:39 AM on September 15

I'm sorry you're in this position, but I'm unclear about the tardiness issue. Are you late to work? If so, why? They are switching your shifts back and forth, but have they informed you each time they have changed your shift? When employers don't want to be bothered with things like accommodations under the ADA, they try to find a technical but legitimate reason to make your life hell and/or fire you. Chronic lateness is a legitimate reason to be reprimanded and/or fired, even if they are handling it atrociously. I understand that they aren't tracking other people's arrivals at work, but unless they have a formal, flexible start time policy, that doesn't help your situation one bit. Oh, and the whistle-blowing stuff, let it go because it does not help your cause.

Basically, what I'm saying is that your employers may be awful and trying to avoid the ADA by hyperfocusing on small issues in order to have cause to fire you. Don't give them any reasons. Show up on time, leave on time and not a minute earlier, make sure your lunch breaks don't run over, and do the best job you can do, all while you're looking for a new place to work. I understand how stressful this is, but keep in mind, it is temporary. It's a tough economic climate, but there are jobs out there, you will find one. I don't recommend quitting without a new job lined up because of how it would effect your unemployment benefits, future job searches, and stress level. Good luck!
posted by katemcd at 6:07 AM on September 15

quit and try to collect unemployment insurance until another full-time job comes up (Illinois seems to allow this if the company was participating in illegal activity)

i did this once--or something quite closely to it in illinois. denied unemployment, requested and had a hearing. the unemployment investigator was not impressed with my descriptions of illegal behavior. maybe if i fought harder, i might have won. it should be noted that my employer did not even appear at the hearing to address these issues--and i still lost.
posted by lester at 6:29 AM on September 15

IANAL.

Workplace cases are hard to win, especially if it's a corporation big enough to have its own legal team, but some are winnable cases. Only an employment lawyer familiar with your state and the federal statutes and your details would know, though.

This sure sounds like one of those times when you should lawyer up.
posted by dejah420 at 7:27 AM on September 15

Whichever way you go with this, after you're settled in your new situation, use the easy whistleblowing sites JohnnyGunn mentioned. It sounds like they deserve it.

I'd also like to nth quitting, if your lawyer doesn't find any good way out of this. It's not worth it to ruin your health just to avoid picking up some debt.
posted by ignignokt at 10:55 AM on September 15

Update: After being forbidden from even leaving my desk during my shift, I bailed during another 85+ degree night, leaving them a pretty fired-up letter. The next day I started getting freelance offers. They gave me two weeks severance unbidden, and their challenge to my filing for unemployment was denied (once the unemployment office person saw the emails I'd been collecting for months), which should ensure I get the newly discounted COBRA (thank you stimulus package!).

More importantly, I feel like I have my life back, and wish I'd quit months earlier. I'm sleeping better, I feel better, and even though I feel partially desocialized from barely seeing the sun or any humans for a year and a half, my friends are helping my reentry into society.

So basically, best-case scenario!
posted by jtron at 3:14 PM on October 19 [1 favorite has favorites]