Can they fire me for calling in because of my broken mobility device?

December 4, 2007 9:47 AM

My assistive mobility device broke. I called into work. Now I've been fired. What can I do?

Over the weekend my leg brace, which I need to get around, broke. Walking without it is an exercise in pain and frustration, as well as a great chance to have an accident. Currently I'm working on a three-day-a-week paid internship (Mondays, Wednesdays, and Fridays) I called into work yesterday (Monday) and today (Tuesday), as I haven't been able to get it repaired or cobble together a temporary substitute (my transportation options are somewhat limited). I just checked my email and there was a message from my boss's boss, letting me go two and a half weeks before my contract was up. Can they do that? I'd go in to talk to them on my own, but, uh, I can't really get there, and I'd like to have some more information first. I really like this gig and would enjoy finishing out my string, as well as having money to pay my rent and buy Christmas presents. Feel free to follow-up to [e-mail]

posted by anonymous to work & money (22 comments total)

Get a lawyer. Stop refreshing to see what other people say. Get out the yellow pages and call a lawyer.

I SAID STOP READING.
posted by Plutor at 10:04 AM on December 4, 2007

Assuming that you are in the United States, it seems like this would be a violation of the Americans with Disabilities Act. Unfortunately, despite working in the field, I'm not familiar with the how the details might play out, especially . (Most of the folks I work with are not capable of working in traditional jobs.)

A phone call to a local agency that works with folks with disabilties would be a good place to start.
posted by wg at 10:05 AM on December 4, 2007

Everyone is going to tell you to call an ADA lawyer. You haven't given enough information here for anyone to determine whether you really have a good case for discrimination, but based on what you've said it's certainly worth discussing with an ADA lawyer.
posted by amro at 10:06 AM on December 4, 2007

Did they have any reason to fire you before this? Did you get any positive or negative feedback about your work while you worked there? Did they give you a reason in the email for why they are letting you go?

If its clear that they did in fact fire you due to your medical condtition, it could be considered wrongful termination.
posted by burnmp3s at 10:07 AM on December 4, 2007

The title of this post mentions being "fired", however your description says "I just checked my email and there was a message from my boss's boss, letting me go two and a half weeks before my contract was up." ..

Are you a contract employee? Are you even an employee? What are the terms of your employment? They could be in the clear if you have a contract term (ie, 3 months) and they are just letting you know they don't plan to extend that contract.
posted by SirStan at 10:10 AM on December 4, 2007

If your employer has an HR department, you can probably give some poor HR person a heart attack with one phone call. Be pleasant and polite and just ask how they'd like to arrange your termination paperwork and everything, since you'll be needing that documentation. Actually, you could probably make the same request of your former boss, to more or less the same effect.

You were an intern and on a contract, which may limit their liability, but certainly you should contact your local employment commission.
posted by Lyn Never at 10:11 AM on December 4, 2007 [2 favorites]

I'm not sure how it works in the states but where I work it would really depend on the terms of your employment. Unfortunately some organizations don't offer job security to interns, casual/temp or short term contract employees and unfortunately can fire you without notice or reason. Check what your contract says, it may stipulate that they aren't required to give you notice or reason for termination as you're not considered permanent.

Also, did you have a probation period for this internship? That may also play a factor if you haven't satisfied the probation term. My 2 cents.
posted by LiquidKarma at 10:17 AM on December 4, 2007

If you are in the U.S. then this page may be helpful:

What To Do If You Think You Have Been Discriminated Against

It is produced by the U.S. Department of Labor's Office of Disability Employment Policy.
posted by ND¢ at 10:20 AM on December 4, 2007

An internship isn't really the same. It's worth consulting a lawyer, I agree on that, but don't be too surprised if it turns out you have no legal recourse.
posted by Steven C. Den Beste at 10:42 AM on December 4, 2007

An internship isn't really the same.


My understanding (although I am not an attorney) is that you are wrong, Steven. A paid internship is an employer / employee relationship. Anonymous is paid by Company X to perform specific duties. Whether Company X chooses to call those duties an "internship" rather than a "job" is less relevant than what those duties actually are.
posted by dersins at 10:59 AM on December 4, 2007

Find a local disability-rights organization who will take you to a lawyer. Get them to pay him or her to write a letter to the company. There's a little something called the Americans With Disability Act that boss's boss didn't think about. Boss's Boss certainly didn't call HR.

If you live in the Washington, D.C. area, send me an E-mail and I will find you a lawyer.

Disclaimer. I am not your lawyer. You need to seek one to learn about your rights and enforcing them.
posted by Ironmouth at 11:07 AM on December 4, 2007

Some questions that might be relevant to an ADA claim: Why do you use a leg brace? Is it due to a temporary condition (you broke your leg playing football three months ago) or a permanent condition (you've always needed it)?

Does the condition that makes you wear a brace significantly impact your life?

What reasons, if any, were given by the employer?

Did the employer offer an accommodation to deal with your inability to get to work that day?

Has this condition led to other difficulties at work?

Without all of those answers (and many more) it's impossible to know if there's anything resembling an ADA claim here. Anybody who says you have a claim without knowing that information (and a lot more) is not a lawyer or is committing malpractice.
posted by thedevildancedlightly at 11:15 AM on December 4, 2007

I would add to those questions (thedevildancedlightly's): Is there any tiny chance that maybe your performance was not up to snuff, leading the employer to cut you off early? And if there is a contract, what does it say about early termination?

I'm guessing it is going to turn out you are either an at-will employee or a contractor who can be terminated at any time for no reason. The damages you suffered are at most two and a half weeks of compensation, which is not worth getting a lawyer for. Nor is it likely you can make a good case that they are liable for compensation for whatever pain and suffering they have caused you. They did not discriminate on the basis of your handicap; they fired you because you did not show up for work.

As has been abundantly suggested already, you can certainly talk to a lawyer; most of them will give you a free consultation for this kind of thing; but I would not have much hope. You're better off putting your energy into looking for the next thing.

(And before you all pile on, I'm not saying this is right; it's my opinion of what the lay of the land is here.)
posted by beagle at 11:32 AM on December 4, 2007 [1 favorite]

I'm an employment lawyer, and have been for 12 years. You're getting some bad advice, but I'm not going to go item-by-item. It is also correct that we haven't been given enough information to definitively answer your question (I can't tell if you're an "employee" as defined by the ADA).

I will say this, however, which may (should) relegate everything else to the back burner: Even if you were wrongfully terminated in violation of the ADA, if your employment was going to end anyway in two and a half weeks (or even if the employer could legitimately assert that it would not have extended your contract), your "economic" damages would be limited to your loss of pay for those two and a half weeks. You could also be entitled to "emotional distress" damages, but it's highly unlikely that being fired two weeks too early would lead a jury to award you significant (or any) emotional damages. Given that your potential recovery is so slight, you'd be hard pressed to find an employment lawyer willing to take the case on a contingency basis -- his/her time and costs will almost immediately exceed his/her potential recovery. Moreover, litigation is a nasty, draining, lengthy process. I venture to guess that it's not worth two and a half weeks' pay.

I'm not your lawyer, so I can't give you specific advice -- only you can decide what's in your best interest. If it were me, I'd probably write a letter to the company mentioning the ADA, and ask them to compensate me for the early termination. But if they stiffed me, I wouldn't take it further, as unfair as that might be. If the "principle" is important to you, and worth you coming out financially worse in the long run, then great. But don't harbor any glorified notions of bringing the employer to justice! It just isn't going to happen -- even if you eventually "won".
posted by pardonyou? at 11:41 AM on December 4, 2007 [5 favorites]

Unpaid time off related to an assistive device related to a disability may be a reasonable accommodation under the ADA (or comparable state laws).

Did you let the employer know that the reason you couldn't come to work is the brace? You might want to call and (re) explain the disability aspect, explain that you'd very much like to finish the internship, and so on. Your claim is only for the rest of your internship, as pardonyou? explained, so it would be far better to work it out now rather than file a claim later.

Excerpt from EEOC guidance document:

Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability.(48) An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees. Employers should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave.(49) For example, if employees get 10 days of paid leave, and an employee with a disability needs 15 days of leave, the employer should allow the individual to use 10 days of paid leave and 5 days of unpaid leave.

An employee with a disability may need leave for a number of reasons related to the disability, including, but not limited to:

obtaining medical treatment (e.g., surgery, psychotherapy, substance abuse treatment, or dialysis); rehabilitation services; or physical or occupational therapy;

recuperating from an illness or an episodic manifestation of the disability;

obtaining repairs on a wheelchair, accessible van, or prosthetic device;

avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis);

training a service animal (e.g., a guide dog); or

receiving training in the use of braille or to learn sign language.

Good luck!
posted by ClaudiaCenter at 11:55 AM on December 4, 2007

i don't know how you got the internship, but if you got it through school or some other program, let them know what happened. you may not have legal recourse, but that's pretty objectionable behavior--if both you and your employer knew you had only 2.5 weeks left on your contract, then it's not like THEY were being unduly inconvenienced either. so the school may choose not to work with that employer in the future.

also, never underestimate negative publicity. but that's just me being evil.
posted by thinkingwoman at 11:59 AM on December 4, 2007

I'm also an employment attorney. Don't listen to anyone on this thread. Go to a local disability rights organization and see if you can get connected with someone who can help you. I recommend meeting with a lawyer.
posted by Ironmouth at 12:15 PM on December 4, 2007

Hey, I'm also an employment attorney (representing employees, not employers) and I say listen to Ironmouth! Another resource for finding employment lawyers is the National Employment Lawyers Association.
posted by footnote at 12:40 PM on December 4, 2007

Philosophical aside:

There are lots of employment & disability lawyers here (I am one). I agree with trying to find a lawyer, through your local NELA network or P&A (protection and advocacy).

At the same time, I also believe in self-advocacy and legal education for non-lawyers, including (especially) people with disabilities. This is particularly important in situations such as the one described here (perhaps a few weeks of intern pay lost), where even a nonprofit may not have the resources or interest to assist. It's important for people with disabilities, and especially young adults with disabilities entering the workforce, to understand how the law works and how to negoatiate with and without lawyers. The law on reasonable accommodation requires working people with disabilities to participate in such negotiation.

In short -- not everyone can find a lawyer for every legal problem they encounter. So, it's important for lawyers and disability advocates to share accurate legal information with non-lawyers.
posted by ClaudiaCenter at 12:56 PM on December 4, 2007 [6 favorites]

Hey, I'm also an employment attorney (representing employees, not employers) and I say listen to Ironmouth!

By all means, if anonymous wants to talk to an attorney, she should. If she wants to sue, she should. But do you disagree with my explanation of her likely recovery even if she were to "win"? Do you not agree that there are costs -- financial and emotional -- to all parties involved in litigation, even wronged plaintiffs? Do you not consider the role of a lawyer to advise as to the likely outcomes of every possible course of action? It's easy to find people who will tell you to sue. It's much harder to find someone who will tell you the honest truth about the likely final outcome of deciding to do so.
posted by pardonyou? at 2:57 PM on December 4, 2007

Assuming you're in the US, here's a list of disability advocacy organizations by state.
posted by qldaddy at 3:33 PM on December 4, 2007

I'm a lawyer, but not a disability lawyer. Without giving you specific legal advice (which of course you know I cannot and am not doing), I concur with PardonYou?'s cost/benefit analysis. I suggest using other resources I saw listed to get yourself more educated, but at the end of the day you're most likely to get a good result from a voluntary severance offer from your ex-employer. Don't charge in ready for thousands of dollars in legal expenses and potentially years of litigation over 2.5 weeks of pay for 3 day/week work (unless you get paid eleventy one thousand dollars a day).

I know you're angry. It's righteous anger. I would be FURIOUS if that happened to me, when I was in pain, couldn't get around, and couldn't handle the situation in person. It sucks. I really hope you feel better.
posted by bunnycup at 3:44 PM on December 4, 2007