Ask HN: Non-US Fired after bipolar depression shared with HR. Can they fire me?
Yesterday after a week of severe depression episode where I ended up in the hospital they fired me. I suspected they were going to fire me (scheduled 1am call with HR) and I've decided to share with them 3 days ago my Bipolar Diagnosis. Although I wished not, I shared this this because I've read that in the US ADA would protect me and they would have to accommodate me before firing me. My performance never dropped, only my communication. I never stopped coding.
This was pure discrimination, and they got away with this because I am not us-citizen. The real relationship with them was employee and my salary was in the six figures.
Is there anything I can do? May ADA or similar act legally cover me? They are a well respected and known company. Although I may want to seek some monetary compensation for discrimination, I also am upset they did not care about my condition.
If you know a lawyer that can help me, hope this is a precedent and doesn't happen to anybody else. Mental health is health.
Wish you a healthy day.
70 comments
[ 4.2 ms ] story [ 122 ms ] thread[1] - https://www.eeoc.gov/laws/guidance/depression-ptsd-other-men...
The European governments has foreseen protections (e.g. they can't fire you when you are sick, or notice leave, etc...), but these only apply when you are an employee.
I sincerely hope though that you manage to receive a compensation for the wrongdoing they did to you. Like the other poster mentioned, maybe checking out with a lawyer in the US would be the best way to go forward.
Uhm... most of the US is at-will employment, which means they can and do terminate people at any point in time with absolutely no reason necessary what so ever.
There is 0 protection for employees in the US (in most cases).
This is not like Europe at all where there are rules around how you can fire people and legal requirements that need to be met.
Employers are required to reasonably accommodate people based on disabilities and medical conditions. What is reasonable is up to debate. It would also require that you can show they fired you for that issue, which can be tricky because they can always find some legitimate reason to cover their true motives.
One example of this could be an alcoholic. Maybe they showed up to work drunk. If they tell their employer that they are an alcoholic, the employer has to offer to get them help before they can fire them. If they refuse help or the issues continue, then you're allowed to fire them. Now if they never told the employer about their condition, the employer could just fire them because maybe it was just a bad decision to stay out partying all night, which is not a medical condition.
True, you don't need to say what the condition is.
It appears the OP may have waited until the termination meeting with HR to communicate the medical condition. It's not clear that the OP actually requested any accommodations or leave. In fact, it's not clear that the company denied the OP anything or had any way of knowing the OP's situation leading up to the firing event, due to the OP's admitted lack of communication with the company.
This is of crucial importance before any reasonable answer or advice can be given. Also: if you want to get really good advice you should contact an employment lawyer in your locality.
Then it says "THIS EMPLOYMENT AGREEMENT (“Agreement”) is made as of the Effective Date, as defined below, by and between XXXX,XXX, a XXXX limited liability company (“Company”) and XX MY NAME XXXX (Employee)."
The paragraph request is
"[...] Employee agrees that any and all claims arising out of or related to this Agreement, including its validity, interpretation, breach, violation, or termination, shall be brought in the exclusive forum of the state or federal courts governing XXXXXX, XXXXX XX[STATE]XX and pursuant to XXX[STATE]XXX law. The Parties expressly consent to personal and subject matter jurisdiction in this forum. The prevailing party is entitled to payment of its costs, expenses, and attorney fees by the non-prevailing party for actions, disputes, or litigation arising out of or related to this Agreement. This Agreement is deemed to have been negotiated, executed, and performed exclusively within XXXXXX, XXXXX XX[STATE]XX."
"[...] Employee to Devote Full Time to Company. Employee will devote full productive time, attention, and energies to Company’s business, the business of its subsidiaries[...]"
and give me company benefits
"[...] Company will provide Employee with standard company benefits, which will be adopted and defined at the discretion of Company. (c) Employee will be eligible to participate in additional company benefits, as defined within the sole and absolute discretion of Company, which may include health insurance, dental insurance, vision, and 401(k).[...]"
Even so, an employment lawyer may be able to get your a settlement as an alternative to a whole pile of bad publicity.
https://askjan.org/articles/Applying-the-ADA-in-a-Global-Eco...
> To determine whether the ADA applies to employment in foreign countries, you must look at both the employee and the employer. The employee must be a U.S. citizen; foreign employees working in foreign countries have no protection under the ADA. In addition, the employer must be a covered entity (at least 15 employees) and must be of American nationality or, if foreign, controlled by an employer of American nationality.
In addition, OP will need to be able to prove that they were fired because of their disability. OP should keep copies of any communication or other evidence they have, and contact a lawyer ASAP if they wish to pursue this.
I hope you feel better and manage to get a job with a nicer boss.
https://www.nami.org/Home
And do take care of yourself first and foremost and you can lead a decent life. So if I were you I'd pursue this thing but if nothing can be done I wouldn't sweat it and concentrate on healing, on good patters, and stability , even if it feels hard when not having a job it is possible if you make an effort.
Don't listen to people on this thread talking about "at-will employment", which (1) doesn't really apply to contractors and (2) doesn't apply to most discrimination cases, which are covered by separate laws (ADA, the Age Discrimination act, FMLA, etc).
Contractor status is one of those things you can often actually contest. Your employer referring to you as an "employee" is probably not dispositive, but there are a bunch of other tests (how much control you have over your work, etc) that an employment lawyer can walk you through.
Flip side of this: if your former employer is big and well-known, chances are they're well aware of the legal tripwires for contractors (everyone is after Microsoft infamously blew up over misclassification). Your actual contract, the one that actually got signed, probably spells out in great detail the fact that you are not a full-time employee entitled to benefits. So if it's a clueful company, it may be a steep hill to climb to argue that you were misclassified.
Terminating an employee with no previous disciplinary record right after a mental health crisis would be sketchy pretty much everywhere in the US, and most employers would be worried about legal repercussions. So it's possible that if you get a decent lawyer, you might be able to put together a nastygram that will get your former employer to cough up a settlement of some sort, rather than going to bat over your contractor status, which would be expensive for everyone.
Best of luck.
"Is the charging party a U. S. citizen? If not, (s)he is not protected by Title VII or the ADA, which exclude aliens working outside the United States"
https://www.eeoc.gov/laws/guidance/enforcement-guidance-appl...
So the lack of US citizenship specifically does play a big role here. However, I pointed out elsewhere there are in some cases other laws, especially state-specific ones, which might apply, possibly :)
I'm particularly concerned about this quote from the OP:
> My performance never dropped, only my communication. I never stopped coding.
Specifically, I'm concerned the OP continued to write and submit code while also failing to respond to communications from the employer, without a prior explanation. As a remote employee, communication is a key part of performance. Unfortunately, if the OP was submitting code during this episode it would have signaled that they were active and working, yet refusing to communicate. Without an explanation (which was only provided later), this would easily be grounds for dismissal of a remote employee.
We don't know all the details, but it appears the OP only communicated the situation after seeing a scheduled meeting with HR, which they suspect was related to a planned firing:
> I suspected they were going to fire me (scheduled 1am call with HR) and I've decided to share with them 3 days ago my Bipolar Diagnosis.
If the OP waited until the firing meeting with HR to communicate any of these issues, it was too late. Who would fault a company for terminating a remote employee who wasn't responding to communication? If they had requested reasonable accommodations or a leave of absence prior to the suspected firing meeting, that would be a different story. However, it appears the company had no idea that the employee was in need of these accommodations or a leave of absence for the period of time leading up to these events, even though the employee continued to submit code.
The OP likely has limited time and energy at the moment. Adding an uphill legal battle which is unlikely to produce a positive outcome is not going to help that situation. It may very well be best to cut losses, focus on healing, and move on.
There's a lot of reasons to think this is a long-shot:
(a) You're non-US and abroad, so the ADA doesn't apply to you
(b) You're probably a contractor and not an employee
(c) Even if it applies, the ADA doesn't make it unlawful to fire you for poor performance
I think it's worth talking to a pro about this, but it's not worth spending a lot of money pursuing it, mostly because of (a). If you were a US resident, I'd say (b) and (c) are hurdles low enough that you could plausibly shake a settlement loose, but (a) is a very high hurdle.
The person in question is a non-US citizen living outside the US. They are not covered by anything related to the US. They need to understand what the laws are in their own country, but chances are their contractor status will make it easy to dismiss them. They should read their contract, and pursue an attorney in their own country, but definitely not an American attorney.
> My performance never dropped, only my communication.
Unfortunately, your communication is part of your performance as a remote employee. If your communication with them diminished to the point that they were unable to communicate with you as necessary to complete your job, that's grounds for dismissal. If you continued to write and submit code while failing to acknowledge communications from the company, you may have demonstrated that you were capable of working yet avoiding communication, which is part of your job.
While I'm very sorry for your situation and I can empathize with your struggle, I have to be blunt: It's not clear that you have a valid standing here.
For future reference, any sudden absences should be communicated to your employer ASAP. You don't need to provide details. If necessary, you can have a family member send a short communication (don't provide any medical details, just explain that you are unavailable due to medical emergency) to your employer.
I would also recommend that you read up on what constitutes reasonable accommodations under the ADA. Be wary of internet sources, as this is a nuanced topic. Generally, though, these situations are more appropriate for taking leave under FMLA.
> If you know a lawyer that can help me
Again, please be careful. While it's tempting to pursue legal action, it may cost you more time and energy than you can spare to fight a battle that you are, frankly, likely to lose under the circumstances. Unless you can identify a specific legal violation (not conjecture about their motives) while covering all of your bases, it's better to focus your limited energy on returning to good health and moving on.
The problem is that the OP didn't request accommodations until HR had already scheduled a meeting, which the OP assumes was to fire them:
> I suspected they were going to fire me (scheduled 1am call with HR) and I've decided to share with them 3 days ago my Bipolar Diagnosis.
The OP also explains that they were not communicating with the company leading up to this event.
Unfortunately, the ADA accommodations can't be retroactively applied after the company has fired the employee.
Unless I'm misunderstanding the OP's post, we shouldn't be encouraging them to pursue legal action which is unlikely to produce a positive result.
You said diminished communication is grounds for dismissal. You didn't say diminished capacity might excuse it. Both are important.
It isn't clear if they disclosed the condition before or after the meeting was scheduled. It's clear they did it before they were fired.
They said their communication dropped. They didn't say they weren't communicating.
We should be encouraging them to get advice from a qualified professional.
This is our daily reminder that HR is not your friend. They will side with the company 100% of the time. They are the illusion of a union replacement, and they seriously need to be regulated.
They will almost always give you a free consultation about whether you have a claim, if nothing else.
I would not look into legal-self-help kinds of stuff until you contact a few employment attorneys and none will take your case.
I don't know other way to get in contact with these people other than Twitter, but you should consider sending a DM to @pinboard, @popehat and @yashar. And it might be better not to read their feeds before you do.
All these ADA, HIPAA stuff are crap, the Big Brother is watching and he knows.
If you are a 1099 independent contractor, broadly there are no protections under the ADA. Only your contract controls what either party can do. If you have a contract that requires good cause to terminate or 30/60 day notice that could apply here.
If you are an employee, or misclassified as a contractor and should be an employee it is possible this was unlawful termination. Whether you would be an employee depends primarily on your job responsibilities, not what your employer decides. It is a fact specific matter, and being physically outside of the US, not a US citizen, not authorized to work in the US means it is most likely you were an contractor and not an employee.
It is also possible they are justified in firing you if you were an employee. Under the ADA the employer is required to make reasonable accommodations for a disability. But you need to request it. And if it creates an undue hardship for the employer, or you are no longer able to complete essential duties it is lawful to fire you.
Also the law is not always able to grant effective recourse. Even if the company fired you unlawfully or violated the contract, it can take too much time and money to prove what happened, you can't always put things back the way they were, if you win collecting on a judgement takes work too. But a lawyer can advise you of your rights, the realistic outcomes. In many cases if the company was legally in the wrong you can reach a settlement for severance, or can get help filing a complaint with the state department of labor. In most states you can get a free or low cost consultation with an employment attorney, and can contact the state bar for a referral if you don't know anyone to refer a lawyer.
A part of your performance might have needed the communication because as you’ve said everyone works remotely for the said company. Lack of communication can disrupt the harmony of the team that makes the company work.
I do feel for you because mental health issue isn’t something anyone should take lightly.
If you were getting fired because of your performance or lack of communication isn’t helping the company anymore without them knowing you were going through this mental health issue, is it really grounds for discrimination? From what I understand they were letting you go because of the communication not because of your mental health.