Tuesday, February 17, 2015

SOCIAL SECURITY: Your Ability to Work

Residual Functional Capacity

In order to know whether you can work, the Social Security Administration (SSA) needs to know what you are still able to do, after considering the effects of your disability. For instance, if you can still sit and type, but you can’t walk or stand for three hours, the SSA will use this information to show you can probably do some kinds of work but not others. 

What Is Your Residual Functional Capacity (RFC)?
To learn what your capabilities are, a disability claims examiner works with a medical consultant at DDS (Disability Determination Services, a state agency that works for the SSA) to perform an RFC (residual functional capacity) assessment on your claim. The consultant will determine what level of exertion you are capable of, and what restrictions limit the jobs you can do. The medical consultant will rely on your medical record and your doctor’s notes about your functional abilities and restrictions to come up with your RFC. 

What Level of Activity Are You Capable Of?
Your physical RFC determines whether you can be expected to do sedentary work, light work, or medium work. For instance, if your doctor has restricted you to walking and standing no more than two hours per day, your RFC will be for sedentary work. Here are the various exertional levels that could appear in your RFC.
  • Sedentary work. This means you have the ability to lift no more than ten pounds at a time, and occasionally lift or carry things like files or small tools. A sedentary job is mostly sitting, but you must be able to walk and stand occasionally.
  • Light work. This means you can lift up to 20 pounds occasionally, and frequently lift or carry up to ten pounds. Light work requires frequent walking and standing and the ability to push and pull with your arms or legs. If you can do light work, you can do sedentary work.
  • Medium work. This means you can lift up to 50 pounds at a time, and frequently lift or carry up to 25 pounds. If you can do medium work, you can also do light and sedentary work.
  • Heavy work. This means you can lift up to 100 pounds at a time, and that you can frequently lift or carry up to 50 pounds. If you can do heavy work, you can do medium, light, or sedentary work.
  • Very heavy work. This means you can lift objects that weigh more than 100 pounds, and frequently lift or carry 50 pounds or more. If you can do very heavy work, you can do all other levels as well.
Your RFC will also include any non-exertional restrictions, such as not being able to stoop, use your fingers, or remember instructions. 

How Your RFC Is Used
The disability claims examiner at DDS will first use your RFC to determine if you can be expected to do your prior job. The examiner will look at your work history for the past 15 years to see what type of work you know how to do. If your prior job was sedentary and your RFC is for sedentary work (or higher), the claims examiner will probably find you should be able to return to your job, unless your RFC has further non-exertional restrictions. (If you have mental or emotional limitations, such as memory problems from a psychiatric or neurological disorder, or you are unable to concentrate, DDS should create a mental RFC for you as well.)
Note that to be considered able to work, you must be able to work full time, attend work regularly, be productive at work, and not need to take frequent rest breaks.
If the disability examiner determines you can’t do your prior job, the examiner will then use the SSA’s medical-vocational rules grid to determine whether, given your RFC, your age, your education, and your skills, you should be able to learn another job. 

If you do not think you can work anymore and want me to help you apply for SSDI, or have already applied and been denied, please contact me and let me help you get the compensation you have earned through your years of hard work.

Monday, February 16, 2015



This is a very general outline of your rights as a worker in Maine. It covers basic questions you might have after losing your job. I also explain how the unemployment benefit system works.  You may be unemployed because you were laid off or fired, or you quit.  The facts of your particular situation will affect your rights under the law.  This is an overview of your general rights.

If you belong to a union, check with them about more rights you may have under your union contract. Some city and town employees have special rights. Also, if your employer has an employee handbook or written employment policies, those may give you more rights than the ones explained here. A contract between you and your employer might give you more rights.
If you think you have been treated illegally or wrongfully denied unemployment benefits, please contact me for a free consultation.

Termination of Employment

Can my boss fire me without a good reason?
In most cases, yes. Maine employers and employees work under a system called "employment-at-will." This means that you are free to quit your job whenever you want. Your employer is also free to fire you for any reason or no reason at all. The only limit is that your employer cannot fire you based on discrimination or retaliation.
Can I quit or be fired without notice?
The general rule is yes.  However, if your employer has a policy that asks you to give a week or two of notice, you should give notice. This also policy forces the employer to give you the same amount of notice, or pay you your regular pay for the week or two after you are let go.
What if my employer and I have an employment contract?
If you can prove that you and your boss entered into an agreement that says you can be fired only for specific reasons - for example, "for good cause" - this contract may be binding on the employer. To appeal a discharge, follow the steps in the agreement or personnel policy.
I work for the town. Can I be fired without notice?
Some city and town employees have a right to notice and a short hearing before they are fired. To see if you have this right, look at your job description, the town's policies or the town's ordinances.
What if my work place is unionized?
Where a labor contract exists between your employer and your union, you probably have a grievance process and cannot be discharged without good cause. Even if you are not a union member, you may still have rights to union representation if you are going to be fired.

Illegal Discrimination

Did my employer discriminate against me when I was fired?
Discrimination involves singling you out because of the group or class you belong to. Illegal discrimination is unequal treatment because of your:
  • race or color
  • sex (including pregnancy)
  • sexual orientation
  • ancestry or national origin
  • religion
  • age
  • mental or physical disability
  • genetic predisposition
For example, if you were fired because your boss wanted to hire his nephew in your place, this is not illegal discrimination.  However, if you were fired because your boss thinks a man would do a better job, you have been fired illegally.

**It's important to remember, that if the actions of your employer do not fit into any of the above categories, unfortunately you have not been discriminated against, in the eyes of Maine law.
My boss laid off 10 older workers for "lack of work," and then hired 10 younger workers. Is this illegal?
It could be. One way to prove illegal discrimination is to show that the employer gave a false reason for firing you. You can also prove illegal discrimination by showing that workers in a protected group were harmed by a decision while workers not in the protected group were helped by the same decision. Your facts could prove the boss discriminated against you and the other workers based upon age.
I quit because my co-workers constantly called me racist names. What can I do about this?
You can bring a discrimination claim even if you quit your job. But you usually have to show you told your boss or someone else in the company about the harassment. The company must stop your co-workers from harassing you. If the company does not stop the harassment, and you feel you have to quit, you may still bring a claim. Your claim is called "constructive discharge."
What if I get fired because I complained about discrimination?
It is illegal to fire a worker because of a complaint about discrimination. This is called "retaliation."
What protection do I have if I lost my job because of illegal discrimination?
The Maine Human Rights Act specifically protects all Maine workers from discriminatory treatment. The federal Equal Employment Opportunity Act, Age Discrimination in Employment Act, and Americans with Disabilities Act protect workers who work for employers with 15 or more employees.
If you have lost your job because of illegal discrimination, you I can file a complaint for you with the Maine Human Rights Commission within 300 days after you were fired.

Some federal laws also protect workers. If you were discharged over a safety issue, I can file a claim with the U.S. Department of Labor in Augusta.

Are there any other reasons why my termination might have been illegal?
Your employer may not fire you solely because: 
  • you complained about not getting overtime pay or minimum wages
  • you reported a workers compensation injury or filed a workers compensation claim
  • the state is taking money out of your paycheck to pay child support
  • the state is taking money out of your paycheck to collect an overpayment of public benefits
  • you were called for jury duty
Also, some public benefit programs, like General Assistance, provide more protections. Your employer cannot penalize you because the state or town asked for information about you, to determine whether you qualify for help.

Leave of Absence and Termination

Can I be fired if I miss work because I'm sick?
If you qualify for leave under a Maine or federal law, it may be illegal for your employer to fire you. If you have worked for your employer for a year or more, and you have a sickness that requires you to go to the hospital or see a doctor regularly, you may qualify for Family Medical Leave.
Can I be fired if I miss work because I need to take care of my child?
Maine and federal law also let you take time off from work to take care of your child and other family members. If your child has a serious sickness, you may qualify for Family Medical Leave. If your child has a cold and you only need to miss a day or two, Maine's Family Sick Leave Act lets you take your paid vacation or sick time to care for your child.
How do I know if the law protects my time off?
Your time off could be protected by one or more of these laws:
  • Federal Family Medical Leave Act
  • Maine Family and Medical Leave Requirements
  • Maine Family Sick Leave
  • Employment Leave for Victims of Violence
  • Maine Human Rights Act
  • Americans with Disabilities Act
  • Absence for Emergency Response
  • Leave Relating to Reserve Training or Military Service (family members as well as service members)
  • Leave of Absence as a Legislator
  • Employment Leave Due to Extreme Public Health Emergency
You can also ask your boss or your company's human resources manager if you qualify for leave. Get a note from your employer that says your leave is approved. Make sure the note gives the day you must return to work.

Your Rights After You Have Been Discharged

My boss fired me without telling me why. How can I find out why I lost my job?
You have a legal right to this information. Ask your employer in writing to tell you the reason you were fired.  
If your employer doesn't answer within 15 days, he may be liable for up to $500.  If you have to bring a court action, he can also be ordered to pay your attorney's fees, if you win.
I am afraid my personnel file contains damaging information. How can I find out?
Write to your employer and request a copy of your file. You do not have to pay for the copy unless you already got a copy during the same year. 
If the employer does not give you a copy of your file within 10 days after your request, he can be fined $25.00 a day for each day he refuses (up to a fine of $500.00).  You can go to court to enforce this right.  The court can also order that your employer pay your attorney's fees, if you win.
I was fired a month ago and still haven't gotten my final paycheck. Are they allowed to do this?
Once you have left work, ask for your final paycheck.  If necessary, make your request in writing, or have me do it.  Your employer must pay you on the next regular pay day or within 2 weeks, whichever is earlier.  This check should include any vacation pay your employer owes you. If you are not paid in full, you can sue for three times the amount owed, plus attorney's fees.
My boss claims that I'm not getting my last check because I owe him money. Is this legal?
No. Your employer cannot keep wages from you to settle a debt he claims you owe.
Exception: If he accidentally overpaid you wages at an earlier time, and you quit voluntarily, he can take that overpayment from your last paycheck. If your employer loaned you money, and you signed a note about the loan, he can keep the amount you owe.
I worked for my employer for three years. Am I entitled to severance pay?
Under Maine law you may be eligible for severance pay, equal to 1 week’s pay for each year of employment, if all of the following are true:
  • you worked at the company for three years or longer and
  • you do not have a contract that gives you the same or better severance pay and and
  • the company (or part of the company) has shut down or moved at least 100 miles away and
  • you did not accept employment at the location where the company moved and
  • the company employed 100 people or more sometime during the year before it closed and
  • the company was not forced to shut down or move due to disaster or calamity
If your company filed for bankruptcy under Chapter 11 (reorganization), you will not get severance pay, because the company hasn't really shut down for good. This can change if the company later changes to Chapter 7 (liquidation). Then the company must pay severance pay in the amount ordered by the bankruptcy court.

Your Rights to Your Pension Fund and Insurance Benefits

Do I have any right to money I paid into a pension fund?
Yes. You are vested 100% in all contributions you have made to a pension fund maintained by your employer.  You also have the right to the investment return on that money. Ask your employer for a copy of the Summary Plan Description for details.
Am I entitled to receive Social Security benefits?
Not until you retire at age 62 or older or become totally disabled.
Do I have a right to receive any employer contributions to a pension or profit sharing plan?
Yes, but only if you are "vested" in that benefit. Private pension plans are controlled under the federal Employment Retirement Security Act of 1974 (ERISA). This law requires that you have a non-forfeitable right to all or a portion of your benefit after a certain number of years of service with the employer. 
Currently, a plan may have either a "cliff" vesting schedule or a "graded" one.  "Cliff" vesting is much more common in traditional "defined benefit" plans. With "cliff" vesting, you will not be vested at all until you have completed 5 years of service.  At that point, you are totally vested. If your plan is a "defined contribution" plan, it may have three-year cliff vesting or six-year graded vesting for any employer contributions.
These rules may vary depending upon when you left employment. The rules in place when you left will decide our entitlement. There are different rules for plans run by the government, such as city or state, or by church-sponsored plans.
Do I have a right to receive an immediate distribution of my vested benefit under a pension plan?
Not in all cases. First find out if you are in a "defined contribution" or a "defined benefit" plan.
In a defined contribution plan, you have your own account in which you may be fully or partially vested. Examples of defined contribution plans are:
  • profit sharing plans
  • 401(k) plans
  • money purchase pension plan
  • target benefit plans
  • employee stock ownership plans
Most often, defined contribution plans distribute vested account balances to participants within a year of termination, but not in all cases.
In a defined benefit plan, you will generally not get a distribution until you reach normal retirement age (often age 65), or early retirement age (often age 55). Again, you should ask your employer for a copy of the Summary Plan Description for details.
What rights do I have if I think I am entitled to a vested benefit and a distribution, but my employer denies my application for benefits?
Under ERISA, you have the right to appeal any denial of benefits to the Plan Administrator.  This is often your employer or a pension plan committee set up by your employer. Generally, you have 60 days to appeal a denial of benefits.  Then the Plan Administrator must respond to your appeal within 60 days. You must be given a complete written explanation of the reasons for the denial and a citation to the plan document. If your appeal to the Plan Administrator fails, you have the right to appeal to the federal court. Your rights are described in detail in the Summary Plan Description.
May I continue my health insurance even after I terminate employment?
If your employer had 20 or more employees on a typical business day and maintained a group health plan, you may be entitled to continue your health insurance.  This is called "COBRA Continuation Coverage." This coverage is also available to your spouse and your dependents. Ask your employer when you leave if COBRA coverage will be offered. Write a letter to the employer indicating your possible interest and keep a copy of that letter.
How will I know if I'm eligible and when must I elect this coverage?
Your employer must notify the Health Plan Administrator within 30 days of the date your job ended.  Then the Administrator has another 14 days to notify you of your COBRA rights. You then have 60 days - from the date you lost coverage, or from the date the Administrator sent you the notice, whichever is later - to elect COBRA coverage. If you elect coverage, it will be effective back to the date your insurance ended.  Your employer and health plan provider can be subject to substantial fines for failing to provide COBRA coverage. Also, your employer could be found liable in a court case if he fails to offer COBRA coverage in violation of the law and you have medical needs.  Get legal advice.
How long will this continuation last and how much will it cost me?
The COBRA coverage can last up to 18 months after you lost your job (and extends to 36 months in some cases). Coverage will end automatically if you miss a premium payment. Until recently, the cost was about 102% of the cost when you were employed. But, if you became eligible for COBRA after September 1, 2008, you may have another chance to get benefits, at a lower cost. If you:
  • are eligible for COBRA because you were fired or laid off between September 1, 2008 and December 31, 2009, and
  • are not eligible for other group health coverage (such as a spouse's plan) or Medicare, and
  • elect COBRA coverage
you may only have to pay 35% of the premium under a special program. If you earn more than $125,000, you may have to pay more than 35%.
This new lower cost program also lets people who did not elect COBRA, or lost benefits after electing COBRA, to re-elect benefits. If you are eligible to re-elect, you should receive a notice from the health insurance plan. If you think you may be eligible, call the plan and ask about the "Recovery Act COBRA premium reduction program."
If I have family coverage, must I elect to continue both my coverage and the coverage for my dependents?
You have the right to elect COBRA coverage separately for yourself and your dependents. You can keep your coverage and decline for your dependents, or you can decline your own COBRA coverage and elect coverage for one or more of your dependents.

What if I can't afford COBRA coverage?
Check to find out if you or your children are eligible to receive MaineCare, Contact:
Maine Department of Health and Human Services: 1-877-543-7669 or
Consumers for Affordable Health Care: 1-800-965-7476

Unemployment Benefits

NOTE: Over the past several months, the number of weeks for which Maine workers can qualify has been in flux. The Maine Department of Labor does a good job of keeping workers up to date.
Unemployment benefits are for workers who are out of work through no fault of their own. Generally, you can draw these benefits for up to 26 weeks (but see note and link above for information about extensions).
Basically, to qualify you must:
  • file a claim and
  • be partially or totally unemployed, and 
  • have earned a minimum amount of money in a specific period of time, and
  • be able and available to work, and
  • be actively looking for a job
Read more about these requirements below.
How do I find out if I am eligible?
As soon as you are out of work, file a claim.
You can do this in one of three ways:

  • Online
  • Phone: 1-800-593-7660 TTY: 1-888-457-8884
  • Mail: Get forms from your nearest Career Center. Some town offices also have the forms. Follow the mailing instructions on the form.
You will be asked to give information about your employment history, the reason for your job loss and your availability for work.
Your eligibility is based on your having earned a minimum amount in the first four of the last five completed calendar quarters (Jan. - March, April - June, July - Sept., Oct. - Dec.). If you haven't earned enough during that year, the agency will then look at your four most recent completed quarters. You must also have earned a certain amount in each of two quarters during this period. (Workers who are employed in seasonal industries have their benefits calculated differently.)
What happens if my employer's report of why I was let go is different than mine?
A deputy at the Employment Security Office will contact both you and your employer and request more information about the reason for separation. Generally, you have to wait out a disqualifying period if you quit your job without good cause or were fired for misconduct.
The deputy will review the information from both parities and reach a decision about your eligibility.
Are there any circumstances in which I can quit work and still collect unemployment benefits?
Yes. If you leave for "good cause" related to your work. For example, you left because of unsafe conditions or other labor law violations, such as sexual harassment. It must be a situation which would have forced a reasonable person to quit. You also must show that you made a serious effort to solve the problem before you were forced to leave your job.
You may qualify in some cases where you had to leave work because you or an immediate family member was ill. You:
  • asked for time off, or a change in hours or shift, due to the illness,
  • your request was prompt and reasonable, and
  • your employer refused.
You must still be "able and available" for at least part-time work.
What if I had to leave my job to follow my husband or wife to a new location, or to escape domestic violence?
When you have to leave your job to follow your spouse, you should be able to collect benefits. To qualify, you must wait to file until you are at your new residence, and "be able, available, and actively seeking suitable work". Also, you may qualify if you are forced to leave your job to protect you or any member of your immediate family from domestic violence. Or you left your job because staying would have been dangerous for you or an immediate family member. You should qualify as long as you can show that you did everything within reason to try to keep your job.
My employer says that I was fired for having "a bad attitude". Can I collect benefits?
Maybe. Being fired in itself is not a disqualification. However, you will have to regain eligibility if you were discharged for "misconduct connected with the work."
The law defines "misconduct" as "a culpable breach of [your] duties and obligations to the employer or a pattern or irresponsible behavior, which...[shows] a disregard for a material interest of the employer." In other words, you acted irresponsibly, didn't do your job, and didn't act in your employer's best interests. Misconduct includes:
  • not performing reasonable tasks and following instructions; you did this knowingly or repeatedly
  • violating reasonable rules that you knew about and that are enforced fairly; your violation was unreasonable
  • violating rules that are so common everybody knows about them; your violation was unreasonable
  • being late to work after being warned
  • dishonesty about your training or education or other qualifications, or dishonesty about anything that could hurt the business
  • drinking or being drunk on the job
  • using illegal drugs or being under the influence during the job
  • missing work for more than 2 days because you were in jail
  • sleeping on the job, unless allowed
  • abusive behavior, except when necessary for self-defense
  • destroying or stealing the property of others
  • causing a dangerous situation
  • conviction of a crime in connection with your job, or that reflects badly on your ability to perform your job
However, misconduct cannot be based solely on:
  • a single mistake
  • poor performance if you were making a good faith effort
  • absence due to illness if you made a good faith effort to tell your employer, or
  • protecting yourself or your children from domestic violence if you made every reasonable effort to keep your job
 Get legal advice, if you can, to help you evaluate a "misconduct" charge.
What do I have to do to remain eligible for unemployment compensation during the time I am receiving benefits?
You must file a separate claim each week.  When you file you will have to show that you are serious about looking for work and not rejecting reasonable jobs. You may be able to qualify if you are looking for part-time work only. This rule applies if you normally work part-time or need to work part-time because a family member is sick or disabled or because of domestic violence.
You must be physically "able and available" to work. After you have been unemployed for over 12 weeks, you may be expected to take a job outside your usual field of work and for a lower wage than you were receiving. In some cases you can work and get partial benefits.

Your Rights if You are Denied Benefits

If the state denies your claim, you have the right to appeal.
What if the deputy decides that I am not eligible?
You will get a written decision telling you why you were found ineligible, what the disqualification period will be, and how to re-qualify.
This notice will also tell you how to appeal this decision. You must file an appeal within 15 days of the date of the deputy's decision.
What do I do after I file the appeal?
You may take your case before an administrative hearing officer of the Employment Security Commission.
You have the right to have - or not to have - a lawyer at this hearing. You can tell your side of the story, have other witnesses speak on your behalf, ask the employer's witnesses questions, and show any paperwork that supports your claim.
If the hearing officer decides against you, you have the right to request another appeal. This second appeal goes to the Unemployment Insurance Commission.  This appeal must be filed within 15 days of the date the hearing officer's decision was mailed to you.
Do I automatically get another hearing?
No. The three-member Commission can base its decision on the information from the last hearing, or grant you a new hearing.
New hearings are generally held at this level only if:
  • the first hearing was unfair, or
  • you have important new evidence
Is the Commission my last chance to have my case heard?
No. You can appeal to Superior Court and even to the Maine Supreme Judicial Court.  However, you probably won't be allowed to add new evidence to the record on appeal.  So, be sure that you submit all of the information you need to make your case during the agency hearing.  Also, you should get help from a lawyer, if you haven't already.You must file any appeal within 30 days.

Job Training and Education Programs

You may get education or job training through Maine's Competitive Skills Scholarship Program. This program helps you get education, training, and support so you can get a better job. This program only applies to certain "high demand" jobs defined by the state. The Maine Career Center has more information about "high demand" jobs. If you qualify, this program offers support for apprenticeships, certificate programs, and two and four year degrees.
How do I qualify?
You may be eligible to receive training through this program if you are:

Poverty Guidelines
  • A Maine resident
  • 18 or older
  • Do not already hold a degree beyond high school, or your post-secondary degree is in a field where you cannot find a job
  • You qualify for the training or education program in question
  • Your income is less than 200% of the Federal Poverty Level for your family size, see income guidelines  (see chart below)

A Competitive Skills Scholarship can give you up to $8,000 per year if you are studying full-time, and $4,000 per year if you are studying part-time.
What will the scholarship cover?
You can use the money for:
  • Tuition and fees that cannot be covered by other "reasonably available" public scholarships and assistance.
  • Books, supplies, tools and equipment required by your educational or training program.
  • Child care, transportation, and other necessary support as determined by the Department of Labor.
  • Education you need before you participate in the program (such as basic math or a GED).
Child care, transportation, and other unanticipated or emergency costs related to your program do not count against the $4,000 or $8,000 limit. For more information or to apply for a Competitive Skills Scholarship, contact your local Career Center.

Other Programs that Can Help

The sudden loss of a steady paycheck can quickly break your budget. Here are some federal, state and local programs which may help you.
Food Supplements
This is a federal program run by the Maine Department of Health and Human Services. The income and limits are higher than you may think, and most families with children qualify even if they own "excess assets." The program is designed to provide help fast. Single individuals and families can get food supplements. Apply at your local DHHS office.
Temporary Assistance for Needy Families
TANF helps children who have an absent or disabled parent. Families with an unemployed parent can also qualify.  There are income and asset limitations. Apply at your local DHHS office.  DHHS also runs the Parents as Scholars (PaS) program for eligible parents who are interested in going to college to train for more highly skilled, better-paying jobs.
Fuel Assistance (LIHEAP)
Low-income households can get help with their fuel bills. Apply at your county CAP (Community Action Program).
General Assistance
General Assistance is run by each Maine town and funded by both local and state money.
The program is a "safety net" to help people who cannot meet their most basic living expenses.
Go to your town office to apply. You will need proof of income and expenses such as rent, food, fuel and utilities.