Marilynn Mika Spencer
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Answer to Califorina stay home order and workplaces
The California Employment Lawyers Association (CELA) is the most significant and influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. CELA is keeping track of the laws that protect workers during this crisis. Here is the latest summary of legal rights in California:http://celavoice.org/2020/03/20/a-roundup-of-california-worker-rights-in-the-time-of-covid-19/
posted Mar 21, 2020 2:32 PM [EST]
Answer to Califorina stay home order and workplaces
The California Employment Lawyers Association (CELA) is the most significant and influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. CELA is keeping track of the laws that protect workers during this crisis. Here is the latest summary of legal rights in California:http://celavoice.org/2020/03/20/a-roundup-of-california-worker-rights-in-the-time-of-covid-19/
posted Mar 21, 2020 2:31 PM [EST]
Yes, the money is still yours. In California, PTO is a combination of sick leave and vacation. Usually, PTO can be used for illness, vacation, or any purpose. Sick leave is not vested, by which I mean it is a benefit that does not belong to the employee, although the employee may use the time per the employer's policy. In contrast, vacation time is earned (vested) when accrued. Vacation time is the same as wages in that this time belongs to the employee and cannot be taken away.
If there is no separation between sick leave and vacation – that is, if the two are blended together into PTO and can be used for either purpose or additional purposes – then California law holds that PTO time must is equivalent to vacation time. It belongs to the employee, is earned (vested) when accrued, and cannot be taken away. Vacation and PTO may not be lost for failure to take the time off under a so-called “use it or lose it” policy. (Boothby v. Atlas Mechanical (1992) 6 Cal.App.4th 1595, 1601.)
If an employee's employment ends while the employee still has vacation or PTO on the books, the employer must pay the employee an amount equivalent to the total hours accrued. This mandatory payout is per Labor Code 227.3 and Suastez v. Plastic Dress-up Co. (1982) 31 C3d 774. This because vacation and PTO are the same as wages, and all wages must be paid at the time or terminationif the employer ends the employment, or within 72 hours of termination if the employee resigns without notice.
While it appears your employer either doesn't know or doesn't care about the law, there may be many reasons not to do anything about it just now. Taking action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about unlawful pay practices, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking retaliatory action in the first place. You may find yourself out of a job and unable to find a replacement. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.
There is an alternative, though it involves waiting. Understand that the employer's obligation to pay accrued vacation or PTO is not triggered until the employee's employment ends, when it must be paid as described above. Therefore, when your employment with this employer ends, if the employer does not pay you your accrued and vested PTO, then you can pursue a wage claim or lawsuit if you are not paid everything as required, provided you are still within the time limit (see below).
You will need documentation to support your case. Keep your documentation at home, not at work, to make sure it remains private and doesn't disappear. For documentation:
Keep track of all the information related to this situation. Write down the details using names, dates, location, witnesses, times of day – as much as you can. Save copies of any documents. You may want to send the employer an e-mail (which you print a copy of and take home, or e-mail to your home e-mail address) confirming that the employer told you that your PTO will not follow you to your new position … that you will lose the time. This will provide some documentation.
Then, after your employment ends, you can file a claim for unpaid wages with the Division of Labor Standards Enforcemen (DLSE). The DLSE is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm. You have THREE YEARS from the last day of work to file a Labor Commissioner claim for unpaid wages. Under some circumstances, you will have four years but it is safer to file your claim witin three years.
If you pursue a lawsuit in state court, you have the potential to recover unpaid wages going back FOUR YEARS (instead of three) from the date you file suit, per Business & Professions Code sections 17200 et seq.
If the employer does not pay a terminated employee as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit. (Labor Code section 203).
Your best bet is always to consult one or more experienced employment law attorneys with whom you can discuss the details of your situation and go over your time limits. Please do not rely on general information from a public site such as this.
To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.
I hope there is a good resolution to this situation.
Marilynn Mika Spencer
San Diego
posted Nov 1, 2019 9:38 PM [EST]
If there is no separation between sick leave and vacation – that is, if the two are blended together into PTO and can be used for either purpose or additional purposes – then California law holds that PTO time must is equivalent to vacation time. It belongs to the employee, is earned (vested) when accrued, and cannot be taken away. Vacation and PTO may not be lost for failure to take the time off under a so-called “use it or lose it” policy. (Boothby v. Atlas Mechanical (1992) 6 Cal.App.4th 1595, 1601.)
If an employee's employment ends while the employee still has vacation or PTO on the books, the employer must pay the employee an amount equivalent to the total hours accrued. This mandatory payout is per Labor Code 227.3 and Suastez v. Plastic Dress-up Co. (1982) 31 C3d 774. This because vacation and PTO are the same as wages, and all wages must be paid at the time or terminationif the employer ends the employment, or within 72 hours of termination if the employee resigns without notice.
While it appears your employer either doesn't know or doesn't care about the law, there may be many reasons not to do anything about it just now. Taking action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about unlawful pay practices, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking retaliatory action in the first place. You may find yourself out of a job and unable to find a replacement. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.
There is an alternative, though it involves waiting. Understand that the employer's obligation to pay accrued vacation or PTO is not triggered until the employee's employment ends, when it must be paid as described above. Therefore, when your employment with this employer ends, if the employer does not pay you your accrued and vested PTO, then you can pursue a wage claim or lawsuit if you are not paid everything as required, provided you are still within the time limit (see below).
You will need documentation to support your case. Keep your documentation at home, not at work, to make sure it remains private and doesn't disappear. For documentation:
Keep track of all the information related to this situation. Write down the details using names, dates, location, witnesses, times of day – as much as you can. Save copies of any documents. You may want to send the employer an e-mail (which you print a copy of and take home, or e-mail to your home e-mail address) confirming that the employer told you that your PTO will not follow you to your new position … that you will lose the time. This will provide some documentation.
Then, after your employment ends, you can file a claim for unpaid wages with the Division of Labor Standards Enforcemen (DLSE). The DLSE is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm. You have THREE YEARS from the last day of work to file a Labor Commissioner claim for unpaid wages. Under some circumstances, you will have four years but it is safer to file your claim witin three years.
If you pursue a lawsuit in state court, you have the potential to recover unpaid wages going back FOUR YEARS (instead of three) from the date you file suit, per Business & Professions Code sections 17200 et seq.
If the employer does not pay a terminated employee as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit. (Labor Code section 203).
Your best bet is always to consult one or more experienced employment law attorneys with whom you can discuss the details of your situation and go over your time limits. Please do not rely on general information from a public site such as this.
To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.
I hope there is a good resolution to this situation.
Marilynn Mika Spencer
San Diego
posted Nov 1, 2019 9:38 PM [EST]
Answer to my employer hasnt paid me a raise in two years is this legal?
California and federal law govern the minimum wages an employer must pay for time worked and overtime pay. Other than that, the employer can choose how much it wants to pay for the work, and an employee or potential employee can choose whether to accept the work at that pay or not. Raises and bonuses are not required by law. However, if the position is covered by a collective bargaining agreement (contract) between the employer and a labor union, that contract may require raises at specific times.When an employer does not provide a raise after a lengthy period, it can mean one of many things – none of them good. It may mean the employer is not very happy with the employee's work and does not feel the employee deserves more money. Or it might mean the employer doesn't care one way or the other how well the work is performed and is more interested in inexpensive work rather than quality work. Alternatively, it might mean the employer is not making enough of a profit for it to feel comfortable increasing its wages. And it might mean the employer is inconsiderate, thoughtless, poorly organized, or just plain greedy.
You might try approaching the employer in private, in a calm and respectful manner, and ask what you can do to warrant a pay increase. You can explain that you love your job and want to succeed, and you view this as a long-term position. The employer might give you good guidance. There is always a risk in this kind of discussion, however, because the employer may interpret the question as an indication the employee is dissatisfied, in which case the employer may consider finding someone else to do the job who is more complacent. It is not illegal to replace an employee who, as an individual, asks for a raise or discusses an interest in getting a raise. It is illegal to to discriminate or retaliate against an employee who complains about illegal pay practices, or employees who band together to try to improve their wages, hours, or terms of employment.
posted Sep 21, 2017 5:54 PM [EST]
Based on the limited information you provided, it is legal for your employer not to provide holiday pay to employees who take PTO the day before or after a holiday.
First, no law requires an employer to provide employees with holidays, either as time off or paid time off. Any holidays provided are at the discretion of the employer. An employer is free to set its own holiday policy, including establishing when employees are eligible for holiday pay. FYI: It is not unusual for an employer to require an employee to be working the day before and after a holiday in order to qualify for a paid holiday. Employers often do this because they do not want employees to be absent from work for a longer period.
That said, if an employee is not at work for a reason protected by law – such as those covered by one of the family leave laws, workers' compensation laws, reasonable accommodation laws, jury duty, etc. – the employer may not use that absence as a reason to deny holiday pay, even if the employee is on PTO at the time. There are some exceptions to this, so if in doubt, it is best to check with an attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.
I hope there is a good resolution to this situation.
posted Sep 21, 2017 5:40 PM [EST]
First, no law requires an employer to provide employees with holidays, either as time off or paid time off. Any holidays provided are at the discretion of the employer. An employer is free to set its own holiday policy, including establishing when employees are eligible for holiday pay. FYI: It is not unusual for an employer to require an employee to be working the day before and after a holiday in order to qualify for a paid holiday. Employers often do this because they do not want employees to be absent from work for a longer period.
That said, if an employee is not at work for a reason protected by law – such as those covered by one of the family leave laws, workers' compensation laws, reasonable accommodation laws, jury duty, etc. – the employer may not use that absence as a reason to deny holiday pay, even if the employee is on PTO at the time. There are some exceptions to this, so if in doubt, it is best to check with an attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.
I hope there is a good resolution to this situation.
posted Sep 21, 2017 5:40 PM [EST]
Your options depend on what makes the workplace harmful, unsafe, and unpleasant. If there are risks to employees' safety and health, such as objectively dangerous working conditions (unsafe machinery, passageways that are too narrow, uneven floor, poor ventilation, etc.), then you might have grounds for an Occupational Safety and Health Act (OSHA) or California-OSHA complaint. "The Occupational Safety and Health Act…gives employees and their representatives the right to file a complaint and request an OSHA inspection of their workplace if they believe there is a serious hazard or their employer is not following OSHA standards. Workers do not have to know whether a specific OSHA standard has been violated in order to file a complaint. The complaint should be filed as soon as possible after noticing the hazard or lack of compliance because OSHA citations may only be issued for violations that currently exist or existed in the past 6 months.…OSHA will keep your information confidential." https://www.osha.gov/workers/file_complaint.html />
If your employer retaliates against you in any way because you filed or indicated you will file an OSHA complaint, you may have remedies as a whistleblower. Even threatening you with discipline or termination MIGHT be enough to warrant whistleblower protection. Please see my guide to Whistleblowers and Their Rights: http://www.thespencerlawfirm.com/tslf-whistleblowers.php. />
If the job is unpleasant because management representatives are bad at their jobs, rude, or impersonal, that is probably perfectly legal. Unfortunately, employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.
There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.thespencerlawfirm.com/pdf/tslf-at-will-california.pdf. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action.
As with most legal issues, the specific facts and details will determine whether you have any legal rights. If it appears you might have a whistleblower or other claim, please contact an experienced employment attorney with whom you can discuss the details of your situation in private. Do not rely on general advice from a public website such as this. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.
I hope there is a good resolution to this situation.
posted Sep 7, 2017 03:06 AM [EST]
If your employer retaliates against you in any way because you filed or indicated you will file an OSHA complaint, you may have remedies as a whistleblower. Even threatening you with discipline or termination MIGHT be enough to warrant whistleblower protection. Please see my guide to Whistleblowers and Their Rights: http://www.thespencerlawfirm.com/tslf-whistleblowers.php.
If the job is unpleasant because management representatives are bad at their jobs, rude, or impersonal, that is probably perfectly legal. Unfortunately, employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.
There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.thespencerlawfirm.com/pdf/tslf-at-will-california.pdf. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action.
As with most legal issues, the specific facts and details will determine whether you have any legal rights. If it appears you might have a whistleblower or other claim, please contact an experienced employment attorney with whom you can discuss the details of your situation in private. Do not rely on general advice from a public website such as this. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.
I hope there is a good resolution to this situation.
posted Sep 7, 2017 03:06 AM [EST]
Answer to PTO Florida for California Employee
Probably. If you were hired in California or worked in California, you are most likely a California employee. Take a look at your pay stubs to see if there are deductions for California taxes. If so, the employer understands it must pay you per California law. In California, PTO is just like vacation. Both are considered earned wages and must be paid to the employee. However, there are some exceptions so keep reading.California employers cannot refuse to pay vacation or PTO that an employee has already earned, but an employer can limit how much the employee accrues. If your employer's policies state that there is a maximum number of hours an employee can accrue, then the employee must use PTO before it hits that maximum or risk not being able to accrue any more time. The employer must allow the employee to use the PTO to avoid hitting the maximum.
California law requires employers to pay all unpaid wages to an employee whose employment is ending as follows:
– If the employer ends the employment (not relevant in your case), the employer must pay the employee at the time of termination. This means right then . . . not later the same day, not in the next payroll cycle, but at the time of termination. There are very limited exceptions.
– If the employee ends the employment, as in your case, but did not provide at least 72 hours advance notice, the employer can wait 72 hours before paying all wages dues. If the employee gave at least 72 hours notice, then the employer must pay at the time the employment ends.
There are more details, including pro rata PTO earnings, a prohibition against "use it or lose it" policies, a prohibition against unreasonable accrual limits, and more. It is always safest to consult with an attorney regarding your legal rights.
posted Aug 27, 2017 7:16 PM [EST]
There is no way to answer your question without knowing a far more details. But don't post details here because this is a public web site and anyone can read what you write.
First, this is a site for employment law Q & A, not criminal law Q & A. You may want to post your question on a different site. Second, if the job is "iffy" to you, for goodness sakes, get out of there. If your gut tells you there is trouble ahead, then is this job worth it?
posted Aug 26, 2017 6:33 PM [EST]
First, this is a site for employment law Q & A, not criminal law Q & A. You may want to post your question on a different site. Second, if the job is "iffy" to you, for goodness sakes, get out of there. If your gut tells you there is trouble ahead, then is this job worth it?
posted Aug 26, 2017 6:33 PM [EST]
There is some important text missing from your message. What happened three days later?
posted Aug 26, 2017 6:20 PM [EST]
posted Aug 26, 2017 6:20 PM [EST]
Answer to Can a temp agency tell me work slowed down, but tell the unemployment office that I was terminated?
Many people confuse "terminating" an employee with "firing" an employee. To "terminate" employment means to end it, whether by firing, lay-off, or otherwise. Focus on why the employment ended, not on the terminology.Generally, a person claiming unemployment benefits (a “claimant”) is eligible for benefits if ALL of the following is true: he or she is (1) unemployed due to no fault of his or her own; (2) physically able to work; (3) actively seeking work; (4) ready to accept work immediately; (5) has received enough wages during the base period to establish a claim; and (6) meets eligibility requirements each week benefits are claimed. An overview of these requirements can be found on the web site of the California Employment Development Department (EDD) http://www.edd.ca.gov/Unemployment/Eligibility.htm.
There is a legal presumption (similar to an assumption) that a claimant is entitled to benefits unless the claimant was either fired FOR MISCONDUCT or quit without cause. "Misconduct" generally means taking intentional acts against the interest of the employer. Some examples are tardiness or absences without reason, insubordination, showing up drunk, initiating a fight, etc. "Unsatisfactory performance" is NOT misconduct unless the claimant intentionally did a bad job. If the claimant did his or her best but the employer wasn’t satisfied, the claimant is still eligible for benefits. The burden is on the employer to show that the claimant intentionally did a bad job. Being laid off due to a decrease in work is not misconduct. For more information on misconduct, see http://www.edd.ca.gov/uibdg/Misconduct_-_Table_of_Contents.htm.
The California Employment Development Department (EDD) administers California’s unemployment insurance program and evaluates claims for benefits. Often, EDD telephones the claimant and the employer and interviews both. EDD compares their statements and makes a decision based on information received. By the limited nature of the initial process, EDD sometimes makes errors. For this reason, there is an appeal process.
The Notice of Determination stating your claim was denied for misconduct includes information about the appeal. You MUST file your appeal within 30 days of the date stated in that letter. Do not miss the deadline. In the appeal, make a brief statement saying why you believe the denial was incorrect. Save your detailed argument and evidence for the hearing. For example: “I was told by supervisor Mr./Ms. Smith not to return to work because business was slow.
In a few weeks, you will receive notice of an appeals hearing with the date, time and location. At the hearing, be prepared with as much evidence as possible. You should also know the law the administrative law judge will consider. You can get a lot of helpful information on the EDD website.
Home page
http://www.edd.ca.gov/Unemployment/
Eligibility requirements
http://www.edd.ca.gov/unemployment/Eligibility.htm
Summaries of the law (Benefit Determination Guide)
http://www.edd.ca.gov/UIBDG/
Appeals
http://www.edd.ca.gov/Unemployment/FAQ_-_Appeals.htm
Precedent Decisions (law the administrative law judges rely on)
http://www.cuiab.ca.gov/precedent_decisions.shtm
Frequently asked questions
http://www.edd.ca.gov/unemployment/FAQs.htm
Filing a claim for unemployment benefits
http://www.edd.ca.gov/unemployment/Filing_a_Claim.htm
You can be represented by anyone at the hearing. If your appeal will be difficult or you are uncomfortable speaking, you may wish to retain an attorney to help you prepare or to represent you. For training, expect the attorney to need approximately three hours. For hearing representation, expect the attorney to need three to seven hours to prepare, depending on the complexity of the case, witnesses, documents and other evidence, and allow two hours for the hearing itself. Unemployment hearings usually last one hour or less, but you must arrive early to look at the file and there is a possibility you will have to wait for the previous case to finish.
Generally, as of 2017, plaintiffs employment attorneys in California charge between $250 and $700 per hour for legal services. The amount varies based on experience, location, attorney availability, attorney interest in the case, complexity of the matter, and more. To find a plaintiffs employment attorney in California, visit the California Employment Lawyers Association (CELA) at www.cela.org. CELA is the largest and most influential bar association in the state for attorneys representing working people. You can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.
Marilynn Mika Spencer
San Diego, CA
posted Aug 21, 2017 8:22 PM [EST]
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Contact Marilynn Mika Spencer
Marilynn Mika Spencer
Representing working people and labor organizations in the fight for justice on the job
San Diego, CA
Phone: 619-233-1313