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Can I apply for unemployment? New York

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  • Can I apply for unemployment? New York

    Ok, I went out on short term disability back in January due to panic disorder/anxiety issues. I've gone through multiple medication changes and see a therapist regularly and I'm not 100% yet, but I can work with some accommodations. My short term disability ran out in July and I have zero income. I was barely making it all these months on $170/week in NY, but thankfully I ave a supportive girlfriend. I was not milking this situation in any way and I'm still getting treatment, but I need to work and earn money. I work for a large sanitation company that is very chaotic and I was basically doing the job of 4 people in a very stressful environment. I handled HR, claims, purchasing, legal issues, and other various duties...I was initially hired 2 years ago to just handle claims.

    I told my manager that I could come back, but it would have to be in a limited capacity, more along the lines of what I was originally hired for and that I would need to be provided a quiet place to do my job. The office there is 3 trailers on a sanitation site where a 100 drivers are coming in and out all day, phones are blaring, it's utter chaos because I'm stationed in the middle of the operations center. How you're expected to do office work amidst this chaos is beyond me, but I did it until Jan of this year.

    Bottom line is that they cannot accommodate me or make any guarantees. I am not asking for much, basically a quiet place to do my job more than anything else. This is a company worth over a billion dollars and can afford to make some changes if needed, but they won't. I was offered an overnight supervisor job where. Would be driving all night and I declined that because m doc said with all the med changes I am going through, this would not be a good idea. Theyre now offering me a commission only sales position that will also require a lot of driving and no guarantee of pay. I was making just under $50k before and I need a steady income.

    I know the ADA protects me to a point in that they have to make reasonable accommodations, which they won't. So, can I file for unemployment and will. Have a strong case if they deny me and I have to appeal? I am ready willing and able to work, but I need some accommodations that I feel are not unreasonable.

    Any advice would be appreciated. Sorry for how long this is.

    Sincerely,

    Manic in NY

  • #2
    I assume that your absence was also covered by the Family and Medical Leave Act due to its size. If so, then the longest that the employer had to hold a job for you, accommodation or not, was 12 weeks. If they are willing to offer you a job at this point, they are going above and beyond what FMLA requires.

    ADA requires an employer to make accomodations so long as they don't cause undue hardship. I'm not sure how they can provide you with a noise-free environment on a busy sanitation site.
    I am not able to respond to private messages. Thanks!

    Comment


    • #3
      ADA is not going to require that they rework the entire worksite for you. They can not make the phones stop ringing or the trucks go away or eliminate noise. If it is available, moving you to an office with a door might be reasonable but they do not have to build you a separate office or change the nature of the job site. It sounds like you need to be amongst the "chaos" due to the nature of your job. Your employer has also offered you two other job options both of which seem reasonable. The fact that one is against your doctor's advice does not invalidate the offer neither does the fact that you don't cre for the pay offered by the other. Frankly, some money is better than no money or UI and I would not expect to get unemployment if you turned down the sales job and don't have concrete evidence from your doctor against the overnight job.

      It is also not required under ADA that your employer allow you to only perform the tasks you feel you are up to. The employer decides the duties and functions, not you. Nost jobs evolve over time from what you are hired to do. Heck, my own job barely resembles the one I interviewed for. An employer can opt at any time to reorganize the duties and reassign tasks or hire additional staff but the law is not going to compel them to do so. It may seem reasonable to you but it is far from reasonable in the eyes of the law.

      Anytime you are off work for a medical reason your chances of getting unemployment decrease greatly. Your best bet is to start looking for jobs that are within your medical capabilities and in envirnoments you can better tolerate. Applying for unemployment is free so it never hurts to apply, I just would not bet on receiving it.
      I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

      Comment


      • #4
        It appears you're asking for a completely different work environment than the one that exists for everybody else and a 60% or more reduction in your job responsibilities. I'm not in your employer's shoes but my guess is that there's no way for them to reasonably accommodate that. They've offered you two other positions which you've declined. It appears your next and only option is to start looking for a new job that has a more typical "office" environment and more narrowly defined job responsibilities.

        It would seem that your employer has done everything the law requires them to do.

        Comment


        • #5
          Response to all

          Originally posted by ElleMD View Post
          ADA is not going to require that they rework the entire worksite for you. They can not make the phones stop ringing or the trucks go away or eliminate noise. If it is available, moving you to an office with a door might be reasonable but they do not have to build you a separate office or change the nature of the job site. It sounds like you need to be amongst the "chaos" due to the nature of your job. Your employer has also offered you two other job options both of which seem reasonable. The fact that one is against your doctor's advice does not invalidate the offer neither does the fact that you don't cre for the pay offered by the other. Frankly, some money is better than no money or UI and I would not expect to get unemployment if you turned down the sales job and don't have concrete evidence from your doctor against the overnight job.

          It is also not required under ADA that your employer allow you to only perform the tasks you feel you are up to. The employer decides the duties and functions, not you. Nost jobs evolve over time from what you are hired to do. Heck, my own job barely resembles the one I interviewed for. An employer can opt at any time to reorganize the duties and reassign tasks or hire additional staff but the law is not going to compel them to do so. It may seem reasonable to you but it is far from reasonable in the eyes of the law.

          Anytime you are off work for a medical reason your chances of getting unemployment decrease greatly. Your best bet is to start looking for jobs that are within your medical capabilities and in envirnoments you can better tolerate. Applying for unemployment is free so it never hurts to apply, I just would not bet on receiving it.
          --------


          First of all, I declined the overnight job for my safety and the safety of the general public as I am on multiple medications that make drowsy and dizzy at times. I don't need to risk killing people just work.

          As for FMLA, I understand how it works, but they never even had me fill out the paperwork...to be honest, I don't even think they have it. They are a family run company that breaks so many laws on a regular basis but it all gets swept under the rug and any issues that arise as a result they have their attorneys work on. My understanding of FMLA is that it has to be presented to you and if it wasn't, upon returning to work I can be covered under it for an additional 12 weeks.

          As for reasonable accommodations, they have other property all over the neighborhood (they practically own the neighborhood) where they could stick me to do my job. I do not need to be amidst the chaos to call insurance companies and speak to lawyers on the phone. There is no reason For me to be there. As for job functions, I understand that jobs evolve,I have worked fo major corporations before. But when youre the HR mgr supposedly, I don't think it's reasonable o ask me to go out and buy lunch for the office, shuttle employees around town whenever they ask, go to home depot to buy cleaning supplies, pick up relatives from the airport, and a long laundry list of other menial tasks all while expecting me to be the HR mgr, Claims mgr, Safety Coordinator, purchasing mgr, etc....so, I'll agree to disagree there regardless of what the law might see it as.

          My question was simply about unemployment, if it's no, then it's no. But if I am denied, they'll be sorry because there's a long list of state and federal agencies that would love a call from me to discuss all the serious violation codes that are being broken at this place that will likely result in hundreds of thousands of dollars in fines.

          Comment


          • #6
            My understanding of FMLA is that it has to be presented to you and if it wasn't, upon returning to work I can be covered under it for an additional 12 weeks.

            Then your understanding is incorrect. A SCOTUS case ten years ago, Ragsdale v. Wolverine, established that as long as you received all the time you were entitled to, a lack of notification did not entitle you to additional time.

            The answer to, Can I apply...is always yes. No law prohibits you from doing so. However, the state, AND ONLY THE STATE - NOT YOUR EMPLOYER - will decide whether you are eligible. The employer is entitled to contest the claim if they so choose but they do NOT make the final decision. I have had employees turned down for unemployment when I didn't even contest because the state deemed the reason their employment ended rendered them ineligible. And we've all had employees approved when we did contest. It is NOT up to your employer.
            Last edited by cbg; 08-14-2012, 09:00 AM.
            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

            Comment


            • #7
              Originally posted by Beth3 View Post
              It appears you're asking for a completely different work environment than the one that exists for everybody else and a 60% or more reduction in your job responsibilities. I'm not in your employer's shoes but my guess is that there's no way for them to reasonably accommodate that. They've offered you two other positions which you've declined. It appears your next and only option is to start looking for a new job that has a more typical "office" environment and more narrowly defined job responsibilities.

              It would seem that your employer has done everything the law requires them to do.

              I am asking for my original job back, nothing more nothing less...and I even said I would take a pay cut. They could simply put in in another office at a different location. It's not as drastic as you make it seem. My original job was more than enough work for one person, the problem was I worked harder and was smarter than everyone else there. I am the only college graduate in the place, so instead of hiring more staff to fill other full time positions, they just continually dumped it on me. Sure, jobs do it all the time, and when I wasn't going thru what I am now I could tolerate the workload....barely....by working overtime without pay and being on call all hours. I simply can't handle four peoples jobs right now.

              Comment


              • #8
                Originally posted by cbg View Post
                My understanding of FMLA is that it has to be presented to you and if it wasn't, upon returning to work I can be covered under it for an additional 12 weeks.

                Then your understanding is incorrect. A SCOTUS case ten years ago, Ragsdale v. Wolverine, established that as long as you received all the time you were entitled to, a lack of notification did not entitle you to additional time.
                That may be the case, but that's what the FMLA guidelines clearly state.

                Comment


                • #9
                  Originally posted by Manic View Post
                  --------


                  First of all, I declined the overnight job for my safety and the safety of the general public as I am on multiple medications that make drowsy and dizzy at times. I don't need to risk killing people just work.

                  As for FMLA, I understand how it works, but they never even had me fill out the paperwork...to be honest, I don't even think they have it. They are a family run company that breaks so many laws on a regular basis but it all gets swept under the rug and any issues that arise as a result they have their attorneys work on. My understanding of FMLA is that it has to be presented to you and if it wasn't, upon returning to work I can be covered under it for an additional 12 weeks.

                  As for reasonable accommodations, they have other property all over the neighborhood (they practically own the neighborhood) where they could stick me to do my job. I do not need to be amidst the chaos to call insurance companies and speak to lawyers on the phone. There is no reason For me to be there. As for job functions, I understand that jobs evolve,I have worked fo major corporations before. But when youre the HR mgr supposedly, I don't think it's reasonable o ask me to go out and buy lunch for the office, shuttle employees around town whenever they ask, go to home depot to buy cleaning supplies, pick up relatives from the airport, and a long laundry list of other menial tasks all while expecting me to be the HR mgr, Claims mgr, Safety Coordinator, purchasing mgr, etc....so, I'll agree to disagree there regardless of what the law might see it as.

                  My question was simply about unemployment, if it's no, then it's no. But if I am denied, they'll be sorry because there's a long list of state and federal agencies that would love a call from me to discuss all the serious violation codes that are being broken at this place that will likely result in hundreds of thousands of dollars in fines.
                  The company doesn't make the decision on unemployment, the state does. If these violations were so bad why didn't you report the company while you worked there?

                  Comment


                  • #10
                    Originally posted by cbg View Post
                    My understanding of FMLA is that it has to be presented to you and if it wasn't, upon returning to work I can be covered under it for an additional 12 weeks.

                    Then your understanding is incorrect. A SCOTUS case ten years ago, Ragsdale v. Wolverine, established that as long as you received all the time you were entitled to, a lack of notification did not entitle you to additional time.

                    The answer to, Can I apply...is always yes. No law prohibits you from doing so. However, the state, AND ONLY THE STATE - NOT YOUR EMPLOYER - will decide whether you are eligible. The employer is entitled to contest the claim if they so choose but they do NOT make the final decision. I have had employees turned down for unemployment when I didn't even contest because the state deemed the reason their employment ended rendered them ineligible. And we've all had employees approved when we did contest. It is NOT up to your employer.
                    Employer Notices 29CFR825.300
                    Covered employers must take the following steps to provide information to employees about FMLA:
                    post a notice approved by the Secretary of Labor (WH Publication 1420) explaining rights and responsibilities under FMLA;
                    include information about employee rights and obligations under FMLA in employee handbooks or other written material, including Collective Bargaining Agreements (CBAs); or
                    if handbooks or other written material do not exist, provide general written guidance about employee rights and obligations under FMLA whenever an employee requests leave (a copy of Fact Sheet No. 28 will fulfill this requirement); and
                    provide a written notice designating the leave as FMLA leave and detailing specific expectations and obligations of an employee who is exercising his/her FMLA entitlements. The employer may use the "Employer Response to Employee Request for Family or Medical Leave" (optional form WH-381) to meet this requirement. This employer notice should be provided to the employee within one or two business days after receiving the employee's notice of need for leave and include the following:
                    that the leave will be counted against the employee's annual FMLA leave entitlement;
                    any requirements for the employee to furnish medical certification and the consequences of failing to do so;
                    the employee's right to elect to use accrued paid leave for unpaid FMLA leave and whether the employer will require the use of paid leave, and the conditions related to using paid leave;
                    any requirement for the employee to make co-premium payments for maintaining group health insurance and the arrangement for making such payments;
                    any requirement to present a fitness-for-duty certification before being restored to his/her job;
                    rights to job restoration upon return from leave;
                    employee's potential liability for reimbursement of health insurance premiums paid by the employer during the leave if the employee fails to return to work after taking FMLA leave; and
                    whether the employee qualifies as a "key" employee and the circumstances under which the employee may not be restored to his or her job following leave.

                    Comment


                    • #11
                      http://www.law.cornell.edu/supct/html/00-6029.ZO.html
                      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                      Comment


                      • #12
                        Originally posted by HRinMA View Post
                        The company doesn't make the decision on unemployment, the state does. If these violations were so bad why didn't you report the company while you worked there?
                        Because I wasn't going to leave a job paying 50 grand a year in this economy. I dealt with the BS and voiced my concerns to my boss and he said it is what it is, it's not my company.

                        Comment


                        • #13
                          Cbg is correct. As long as you get the full 12 weeks, your employer has met their obligation. The "penalty" to employers who do not give written notice is not that they must then offer an additional 12 weeks. Like it or not, that is the law as it stands. If you have been out since January, you have already had at least double what you are entitled to. More leave isn't going to solve your problem.

                          The law isn't going to require that you be relocated. It doesn't matter if they own the entire city, your employer hired you for that work site and if you are being asked to perforn the duties you claim, I can totally see why you would need to be on site. Whether you feel all these duties should be in one position or several or not is totally irrelevant.

                          Even if you had a good reason to turn down the overnight job, your employer met their obligation in offering it. They also offered another that it sounds like to turned down because of the money. Your perogative but don't expect that the state is going to grant you unemployment. Stranger things have happened but the odds are very much against you.

                          The state is also not going to care one iota if your employer has violated other laws or codes. That plays no role at all in their decision making process. Using it as leverage however, is very much illegal. For you. If you haven't worked there in 6+ months I'm not sure how you know what violations exist right now but even if you do know of some, reporting it or not isn't going to change either your qualification for unemployment or your employer's obligation to bring you back under the terms you suggest.
                          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                          Comment


                          • #14
                            FYI, the MAXIMUM UI benefit in NY right now is $405 per week.
                            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                            Comment


                            • #15
                              If you were doing non-exempt work during a work week (and lots of tasks you indicated that you didn't think you ought to be doing are non-exempt), you're free to talk with the state labor dept. about not having received overtime pay.

                              Comment

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