Ask HN: Non-US Fired after bipolar depression shared with HR. Can they fire me? | Hacker News Reader

Ask HN: Non-US Fired after bipolar depression shared with HR. Can they fire me?

55 pointsbed9968 comments

Dear hackers. I am a non-us citizen and was working remotely to a US company for 3 years. While I am a contractor my contract doesn't says contract, it says "Employee" everywhere.

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.

View on HN

Your foreign status is perhaps less of a big issue than your contractor status. It may not be the case in every circuit but in at least some of them the precedent is that the ADA doesn't fully protect contractors. Part of the reason companies like to bring on contractors is that the "social contract" of contracting says that contractors can generally be dumped unceremoniously; that's part of the point.

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.

According to the EEOC:

"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 :)

Are they working outside the United States?

Everyone is working everywhere around the globe in the company I used to work for. 100 people.

But the question is are you in the US or not? If you are in the US, the ADA may apply, if not, as a non-US citizen, it does not apply to you. There may be other laws that do apply, probably based on the contract or state the company is based in.

Company US. Me Europe.

You are right, re-reading the OPs post, it is not clear where they are located just that they work remotely. I a inferred more from that than was said.

Good advice in general, but I'd caution the OP against investing too much of their limited energy on fighting protracted legal battles unless they had some other evidence that we're not seeing.

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.

The communication issues were related to a change in the company that they were forcing us to not write in Slack and I accidentally wrote twice instead of opening a Github Issue. My manager got really upset because I did not comply. I understand him but I was suffering very deeply a severe depressive episode which lead me to hospitalization. I missed communicating this until I got scheduled a call with HR at 1am 5 days later. This is were I started suspecting I was going to let go and immediately disclosed my Bipolar diagnosis to HR sending them the letter from my doctor and the medication I was just put in.

So they knew. They had 3 or 4 days before the let go call to decide what to do. They had all my medical data.

If you really want to keep this issue going you should talk to a lawyer, but just for what it's worth (I'm not a lawyer) them "knowing" probably doesn't matter as much as whether or not you asked for specific accommodations for your communications problems, disclosing to them the medical reason for asking for them.

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

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.

Yeah, I am most likely moving on ASAP. Luckily medication which I started a week ago is already working and I feel way better. That's what I disclosed to them, asked for 30 days to see if my medication helps me stabilize (already doing so) and didn't gave a fuck.

I'm glad things are working out. Mental health crises are a motherfucker of a problem and the way our industry treats them is its own clownfire. Based just on what you've said about your situation: it looks like you were mistreated. I'm glad you've found treatment --- it's hard enough to get that far! --- I know lots of people who it's helped a very great deal. I wish you the best of luck.

Thank you too. Luckily Lamictal and a little of Prozac plus therapy is doing magic. It was sad when they said in my face just they wouldn’t wait and believe I can‘t change.

This is terrible advice.

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.

They probably live outside the US. They didn't say though. And there could be relevant state laws.

Company and owners from the US. Employees living everywhere. I'd say 40% if not more are currently living in the US. No office. Incorporated in US.

This [1] is specific to the U.S. but you should get advise from a lawyer and not good intention folks here on HN. Sorry I don't know a labor law attorney. You could probably call the department of labor for the state your company's headquarters resides in. They could tell you if you have a case so you don't spend money on a lawyer unless it makes sense to do so. They would also know if that company has a history of complaints.

[1] - https://www.eeoc.gov/laws/guidance/depression-ptsd-other-men...

Will take a look, thank you.

I can't help you with legal advice but I just want to wish you good health and suggest you keep that as a priority. Even if it feels the end of the world for loosing the job, looking at things from a late perspective won't as grave as they do now. Don't be too hard on yourself and don't feel guilty about anything as employers ultimately care about extracting value about you, especially in the US where most people are reluctant to talk to HR about their mental health even if they say they want to help. Most times they would use it against you somehow so it's not worth it. I was depressed (not clinical but felt hopeless and anxious) in the past and hid it from work and am glad I did because you will get judged if not fired.

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.

Where is your contractual relationship governed (the 'governing law' paragraph of your contract)?

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.

The title of the document is "Employment Agreement" and the word "contract" is not anywhere in the 4 pages.

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."

Also they require my full time.

"[...] 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).[...]"

Sounds to me like you may be an employee, not a contractor. Again, consult an employment lawyer in your place of residence, pity they made the venue for conflict resolution US based, that pretty much tanks your chances of some simple solution.

Even so, an employment lawyer may be able to get your a settlement as an alternative to a whole pile of bad publicity.

I'm very sorry this happened to you. In a moral perspective we can easily see why this should be illegal. But being a foreigner, a contractor, and dealing with an American company, you'll need to consult with a lawyer to navigate these waters.

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.

Thank you for your words. Mean a lot.

I'm not a lawyer, however from an European side, I think it really depends on your contract with them. If you are paid as independent/contractor, then they can probably terminate the contract how they please depending on the conditions which are stipulated on the contract with them. They probably don't need to provide any reasons then.

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.

Here is what I could find.

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.

Many states also have laws similiar to the ADA, so the OP needs to determine which jurisdiction applies, and see if there is a rule in that jurisdiction, which may not exclude foreigners.

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.

Contact an employment attorney. They'll take the case on contingency if they think it has merit. Small employment claims are common and employment attorneys are very familiar with the intricacies of U.S. employment law (of which the ADA is a huge part).

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.

First of all, condolences on this difficult situation. I'm afraid you won't find the best news here, though.

> 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.

This seems like pretty bad advice. There are at least two areas of employment law where stuff definitely happens for workers in this person's story: contractor classification and ADA accommodations. An employee with a mental health condition that impacts the ordinary manner which team members communicate is entitled to request reasonable accommodations.

I never suggested the employee wasn't entitled to ADA accommodations. Are you perhaps confusing my comment with some of the other comments in this thread?

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.

All three of the comments you've made are thoughtful, well considered, and informative. HN suffers, at times, from a cliquishness that degrades the quality of discourse.

You made some good points but some assumptions too.

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.

I did disclosure my condition 4 days before the HR meeting where they fired me. Sent all my docs diagnosis and letter. I only acted based con my intuition what that meeting was about. Actually the meeting wasn't with HR but my manager, just in a weird hour (1am). I figured out HR had another call scheduled same time with my manager (which I was not invited) but public in the company calendar. I did it because I knew that I had to do it BEFORE the call. Even I had a call with HR and they supported me. They had enough time.

You're right. My comment would have been better without the first sentence, which was harsh (and, I think, probably mostly incorrect). I apologize!

You should get a consult with an employment attorney in the state where your job was located, and ask if you were terminated unlawfully, what your options are, and what the realistic outcome is.

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.

So you only told them about your condition after you felt like they were about to fire you? A serious condition you only shared after reading that the US ADA might protect you? Something feels off about this.

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.

I didn’t have my diagnosis until 3 months ago. We are in all time zones with people 11 hours diff. Communication is hard for everyone and when you are in a severe depressive episode even taking a shower seems is impossible.

First off, major respect for being open about mental health, it's something tech needs more. Second, kudos for fighting, both before, during and after this episode, you'll be an example to me when (if is too optimistic) I go through it again.

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.

Thank you. Take care you too.

As someone who has been contracting for US companies for a long, long time: you were not an employee. Cross border employment is impossible as you -- most likely -- do not even have the right to work in the USA. US laws do not apply to you. Sorry. You have nothing.

That was my feeling.

Try these folks: The National Alliance on Mental Illness

https://www.nami.org/Home

The founder of NAMI is one of our clients; she is one of the most wonderful, warm, kind, & positive people I've ever interacted with.

This is not contributing much to the discussion, but I just wanted to add that I am very sorry to hear this happened to you. Good luck.

Thank you for your words.

You shouldn't have shared :\ Next time get a doctor to put a standard diagnosis for time off - broken leg, whatever its not like they'll see it as you are remote.

All these ADA, HIPAA stuff are crap, the Big Brother is watching and he knows.

Do you know anything about their specific situation or are you undoubtedly just speculating here? Because speculation on this topic isn't a great look.

While it is unfortunate that you are being shamed for pointing out a common misunderstanding among developers who don't understand why they get fired, you can delete your comment rather than replacing it a slash.

Can't offer you anything as far as this goes. But you should never disclose your health issues with your employer, especially if your employer is from the US.

I hope you feel better and manage to get a job with a nicer boss.

Don't want to discourage you too much, but even non-contract employees in most states are subject to "at-will employment" that means they can fire you no reason at any time with few or no considerations. If your "frame of reference" is anywhere in the EU prepare to be shocked. A while back, I was asked to resign like 10 days before $40K of options vested. Talked to an employment attorney (a good one) and they said there is basically nothing you can do about it.

> they got away with this because I am not us-citizen

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.

(not a lawyer) Employment is at will, but there are protected classes. Just like you can not be fired due to your race / gender, disability is also protected - https://www.eeoc.gov/disability-discrimination

Which is why they never tell you why they fire you. They just fire you or tell you that your position was eliminated in a re-organization that only affected you.

And yet there are still thousands and thousands of employment discrimination cases every year, even though people doing the discriminating aren't saying "fuck the ADA" while they do it.

Yes, I'm aware, but I personally am in favor of pressing the issue. Though I don't know the details here, in some cases of first diagnosis there will be hospital admission with 72 hour mandatory holding (with limited communication). Instead, consider if someone had been fired for not communicating after being incapacitated in a severe car crash or for the ensuing months of recovery. What would your advice be in that case? What would the companies response have been? How accommodating would they be in the case of the crash?

Firing someone for no reason is legal in most states. Firing someone for the wrong reason is illegal.

And being able to cite a legal reason when you're fired immediately after they learn of a disability doesn't necessarily give them a get-out-of-jail card. But it would vary from jurisdiction and the employment status here sounds complicated, so I would absolutely see a lawyer about it.

This isn't exactly false, but isn't the whole truth either. Your statements apply in general, but they don't cover some of the more detailed scenarios.

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.

This isn't the whole truth either. The employer isn't responsible for getting them help. But adjusting their schedule so they can get treatment might be reasonable. They don't have to say what the condition is.

They don't have to offer you treatment, just 'help'. That could be adjusting the schedule like you said, or other things.

True, you don't need to say what the condition is.

Getting someone help and helping them mean different things usually.

Most importantly: The employee must take the initiative to communicate these requirements to the employer before the firing event.

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.

They said they disclosed the condition 2 days before they were fired.

Actually 3 or probably 4

Reply on news.ycombinator.com