Any Labor Law experts out there?

[Mrs. Peel]

What do you think....

 

1. A person works for 2 years at a company as a full time freelancer, the best one they've ever had, with nothing but praise

2. He is so highly regarded, that when the company has a hiring freeze and is in jeopardy of having to lose him, they negotiate with a third party vendor to hire him as their employee and make him an "in house" agent (essentially employed by one company but exclusively working at the other company)

3. His manager goes up the chain to make his job a permanent position at the company, and incorrectly assumes that he'll jump at any offer they make him (this is how it is sold to HR)

4. HR agrees to create a new full time position, under the assumption that he won't quibble at any offer

5. He fills out an official application and gives a required salary range

6. The company comes back with a very low offer; about the same he is making currently but with many more responsibilities added on

7. He tries to negotiate, as he expected he would need to do, and they say no, the offer is the offer, no negotiations.

8. He takes a few days to consider it, and in the meantime, the company he is currently employed by tells him they're sorry, but they wouldn't be able to find any other work for him for at least a few months, and it may be in a different state

9. He decides he now has no options left, and goes back to the department head and accepts the offer

10. HR draws up a letter of agreement for him to sign, and even though travel is not anywhere in the job description listed in the letter, he knows he will soon be asked to take someone's place on trans-Atlantic trips. He asks for a change to be made in the letter to state that he would not be asked to travel long distances due to medical issues (he has Type 1 Diabetes and has a hard time keeping his levels stabilized when he has to be on long flights and changing time zones) Since it wasn't in the job description, he doesn't think this will be a problem

11. The department head says he can't do that, withdraws the offer, and states that they will be looking for someone to fill the new position immediately, meaning he is now out of a job because the company that officially employs him still cannot find him any work. He will be returned to the freelance game.

12. Did I mention he has a 6 week old baby at home?

 

This is happening to my friend right now. I don't know if I'm biased because he's my friend and he's getting the shaft, but it seems like a pretty clear cut case of discrimination based on a medical issue.

[quarter23cd]

I doubt this in violation of anything, legally (if for no other reason than HR departments are very good at getting around such things), but it is undoubtedly a pretty crappy way to treat an employee. (which, again, still doesn't surprise me)

 

I'm gonna go home and down a couple shots now b/c this situation hits a bit too close to home for me.

[PigSooie]

That's just dirty.

[darkstar]

That sucks......but like Quarter said probably legal only because corporate HR types know their way around all loopholes. I work for a big corporation and the stories I could tell.......

[LouieB]

I am not a labor law expert, but unless someone is in a union they have very little protection unless they are disabled. In that case the American's with Disabilities Act kicks in. Since he was not already working he can't make a claim that he is being discriminated against because of a disability (diseases are not always that easy to prove are disabilities either.)

 

Meanwhile a 6 week old child has nothing to do with anything.

 

The US of A is not a very labor friendly country, but I would think everyone would know that by now. Most people are employed at will and unless they can prove they are being discriminated against for race, gender, or other types of discrimination that are against the law. In all cases the only way to get some redress is to sue; which is of course a long shot, even when you have pretty good proof. It sounds like this guy has very little to go on. Everyone can hire a lawyer and try and make a case if they have enough time and money, but frankly labor law is pretty dicey.

 

LouieB

[Atticus]

I am not a labor law expert, but unless someone is in a union they have very little protection unless they are disabled. In that case the American's with Disabilities Act kicks in. Since he was not already working he can't make a claim that he is being discriminated against because of a disability (diseases are not always that easy to prove are disabilities either.)

 

Meanwhile a 6 week old child has nothing to do with anything.

 

The US of A is not a very labor friendly country, but I would think everyone would know that by now. Most people are employed at will and unless they can prove they are being discriminated against for race, gender, or other types of dicrimination that are against the law. In all cases the only way to get some redress is to sue; which is of course a long shot, even when you have pretty good proof. It sounds like this guy has very little to go on.

 

LouieB

 

what he said. Key being that this was all negotiation before the hiring.

 

Employees are able to make reasonable requests for accommodation (protected by federal law), but if the job requires travel, and the candidate is unable to travel, then it's not reasonable to ask for an accommodation concerning travel.

 

DISCLAIMER: this ain't no legal advice and none of youze is my client

[Mrs. Peel]

I appreciate all of your opinions. I know it's a dicey situation....one thing want to clarify, the job description did NOT mention travel at all. He was just trying to be proactive, a move that we all know bit him in the ass. It's tough to be an honest human being.

Oh also, Lou, I know the 6 week old has nothing to do with it legally, I was just mentioning it as an additional kick in the face.

 

So no one thinks this could be construed as a case of medical discrimination? It seems so clear to me. He was offered a job and then it was rescinded because he asked for something based on special medical needs.

[WilcoFan]

I'm not a labor expert either but most states are "At Will" states. It sounds like they would say it is an at will situation.

[LouieB]

I appreciate all of your opinions. I know it's a dicey situation....one thing want to clarify, the job description did NOT mention travel at all. He was just trying to be proactive, a move that we all know bit him in the ass. It's tough to be an honest human being.

Oh also, Lou, I know the 6 week old has nothing to do with it legally, I was just mentioning it as an additional kick in the face.

 

So no one thinks this could be construed as a case of medical discrimination? It seems so clear to me. He was offered a job and then it was rescinded because he asked for something based on special medical needs.

Well certainly it would be nice if employers were human beings and cared about babies and medical conditions. That goes without saying. But none of those things seem to matter if the bosses are jerks and decide to act on their rights as management. I have had some moderately serious medical problems over the past few years that required some hospitalizations and my direct supervisor never even acknowledged I was out, much less tired to lessen the stress associated with my job. I just recently moved to a new department and many of my symptoms have decreased to a great degree. I even asked my doctor at one point if my condition could be construed as a disabllity and he turned the question around on me and asked if I felt disabled....well no.... Many people have to work with medical conditions that are not truly disabilities and many people have diabeties and it is not disabling. There are some very fine lines here that usually have to be sorted out by either courts or state or federal agencies, all of which take an enormous amount of time and sometimes money. It is pretty sad.

 

 

I'm not a labor expert either but most states are "At Will" states. It sounds like they would say it is an at will situation.

Actually all states are at will, some states recognize workers rights to organize unions more than others which is the dividing line between "right to work" and not right to work states. Once again, the US of A kinda sucks at protecting workers as a whole and certainly we all know about how this country is about medical care, otherwise Michael Moore wouldn't currently be flogging his movie.

 

Workers who don't have unions generally can get screwed for anything (even workers WITH unions get screwed by the way), but those that don't have to use the courts to prove discrimination, not an easy or short term task. Unless you are clearly discriminated against for being a certain race, religion, national origin, disability, gender preference (not all states) or other kinds of protected categories you don't have much of a case. And to bring a discrimination case you have to have some pretty significant proof of that discrimination with witnesses or something in writing, etc. or you are pretty much shit out of luck.

 

LouieB

[brokendowntele]

As one who has danced with HR many times in my capacities with the teacher's union, a job description is not a legally binding document, and usually includes clauses such as "And other duties and responsibilities as deemed necessary." As a side note, and certainly not a judgement, there are waaaay too many off the main road issues with this job opportunity, and those kinds of complicated arrangements always find a way to get f'ed up.

[anodyne]

As one who has danced with HR many times in my capacities with the teacher's union, a job description is not a legally binding document, and usually includes clauses such as "And other duties and responsibilities as deemed necessary." As a side note, and certainly not a judgement, there are waaaay too many off the main road issues with this job opportunity, and those kinds of complicated arrangements always find a way to get f'ed up.

 

 

exactly what i was going to say. job descriptions are general outlines that employers can and do deviate from widely. it's a greasy situation and the company was really wrong ethically, but completely protected legally.

[quarter23cd]

So no one thinks this could be construed as a case of medical discrimination? It seems so clear to me. He was offered a job and then it was rescinded because he asked for something based on special medical needs.

Can't really prove it, though. When my family relocated recently, my wife had applied for several jobs that she was more than qualified for (both internal transfers within her old company and external ones) and she kept being told that she was a "top candidate" and kept getting to the final rounds of interviews, but mysteriously was never offered any of the jobs. The reason, pretty obviously, was that she was six months pregnant at the time. Who wants to hire somebody who is going to go out on maternity leave shortly after starting? Technically, its not legal to discriminate based on something like that, but there's no way you could ever prove that was the sole reason.

 

In your friend's situation, the fact that he was a contractor is kind of what screwed him. Sure, he's been "with" the company for a long time, but was not an internal employee, which is why he can't claim to be wrongfully let go or anything like that. Legally, he was applying for a job as a new hire, so he's subject to the same kind of hiring whims that anybody else is when interviewing for a job. I'm kind of in the same boat right now. I've been contracting with a company for seven months now and have been told they want to bring me on permanently and am told it is a "done deal", but the paperwork has been "held up" in HR for weeks. I haven't seen an offer in writing yet, but have been told by several people to expect far less money than I'm making as a contractor. I have some flexibility as a contractor in that I have a good relationship with my agency and could probably find another position quickly if I absolutely had to...but I can't afford to be missing any paychecks right now, and my family needs the benefits, so in some ways I'm feeling kind of bound to whatever they end up offering me here...which is why its driving me nuts how long they've been stringing me along now.

 

Work sucks.

[Mrs. Peel]

Work sucks.

 

That's what it all boils down to, isn't it?