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wallstreetfighter
wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 15825
Experience:  14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
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I work for a Fortune 100 company. I was out on disability most

Resolved Question:

I work for a Fortune 100 company. I was out on disability most of last year (depression). I have not been given any real assignments since returning to work, just busy work. They say they have nothing suitable for me. I have had performance problems in the past due to my depression, so I suspect that's the real reason behind no 'work'.

Recently they told me they had no upcoming projects for me and no budget for 'overhead', so I was told to take PTO followed by leave without pay. I pointed out this was effectively a termination and the response was, "You should look for another job." I have received NOTHING in writing concerning this situation nor the instructions I was given regarding PTO and LWOP. I sent an email to the VP of HR whose reply was basically that because of my performance problems she would not intervene.

My PTO is about gone and I am having a very hard time finding a new job. I am concerned that the depression I suffer will prevent me from finding or keeping a new job.

Should I return to work until they officially terminate me? Do they have to pay me if I go to work, even if they have nothing assigned to me? Do I have any hope of succeeding with an EEOC claim?
Submitted: 1 year ago.
Category: Employment Law
Expert:  wallstreetfighter replied 1 year ago.

wallstreetfighter :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarification

wallstreetfighter :

This is an unfortunate situation, are you a contract employee?

Customer:

No, salaried

wallstreetfighter :

Do they know of your depression? Are you on medication?

Customer:

Yes and yes

wallstreetfighter :

Are you able to control your disability with the medication?

Customer:

Not really. I have been treated with almost all known anti-depressants with little effect. The best so far is Clonazepam, which lessens the anxiety

wallstreetfighter :

You should return to work, and have a doctor submit a letter stating you are fit to work,

wallstreetfighter :

if they terminate you, then you can apply for unemployment benefits,

wallstreetfighter :

in terms of legal action, you may have a Disability discrimination case, if you feel the reason for their actions is your disability,

wallstreetfighter :

If you file an EEOC complaint, you need to show that your depression is truly a disability under the law, and that the employer failed to provide any reasonable accommodations,

wallstreetfighter :

and used your disability as a reason for the termination

Customer:

I have a doctor who knows I have been struggling. To say I am fit for work isn't entirely accurate. The disability insurance company has been denying my claims because of 'pre-existing condition' and/or 'doesn't fit their definition of disability'

wallstreetfighter :

mental disabilities such as depression are covered under the ADA, if the employee can demonstrate that the alleged disability substantially limits a major life activity such as learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks or working in a broad range of jobs. Sleeping is also a major life activity. Chronic, episodic conditions may be protected under the ADA if the condition is substantially limiting when active, or has a high likelihood of recurrence in a substantially limiting form. Thus, even if a disability is not currently active, an employee who needs an accommodation to continue controlling symptoms may be covered by the ADA

Customer:

They would say their reasons are NOT the depression but rather the poor performance

wallstreetfighter :

Do you have previous good evaluations from work, or performance reviews?

Customer:

My first review was "Exceeds expectations", which is rarely given ( < 2% employees). A single unspectacular result on a project turned a superior against me and I have been having problems ever since (almost four years now)

Customer:

I transferred to a different group but have still been depressed

wallstreetfighter :

That issue would have to be litigated, however, you can argue that they have only started treating you in such a way since your diagnosis,

Customer:

In the short term, I don't know whether to file an EEOC complaint, or return to work against their instructions

Customer:

or keep looking for work and forget it

wallstreetfighter :

You should do both, once you file an EEOC complaint, the employer is prohibited from taking any negative action against you, so that may save your job,

wallstreetfighter :

There is nothing wrong in filing a complaint, and the employer may try to settle with you as well, by offering you a good severance package,

Customer:

Cool. I found the eeoc complaint page. I will do that. Thanks!

Customer:

I'm thinking it might be good to find a local attorney to work with as well...?

wallstreetfighter :

Good luck, and if you have any further questions please do not hesitate to ask.

Customer:

I don't know how to determine which one is "the best" :-)

wallstreetfighter :

Yes, a local employment attorney would help as well. But at this point it may be premature, you can hire an attorney to send a letter to the employer stating you are returning to work, and are going to file an EEOC complaint if they continue there discrimination,

wallstreetfighter :

In terms of best, XXXXX XXXXX contact your local bar association, and look for an experienced attorney 10+ years experience,

Customer:

Thanks again!

wallstreetfighter :

Good luck, and if satisfied please provide us with positive feedback, thank you

wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 15825
Experience: 14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
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