Answers Posted By Marilynn Mika Spencer

Answer to abusive boss

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. 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. If so, an experienced plaintiffs employment attorney may be helpful.

Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.

I hope there is a good resolution to this situation.

posted Apr 19, 2015 01:03 AM [EST]

Answer to I routinely work more than 40 hours a week. However, my employer is not paying me overtime as they are claiming that they hours in excess of 40 are considered

The Division of Labor Standards Enforcement (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 DLSE Enforcement Manual states:

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45.1.4 Required “Training” Or “Staff” Meeting Attendance. DLSE has been asked on a number of occasions how the Reporting Time provisions of the Orders affect a situation where the employer requires employees to attend a short training meeting, staff meeting or similar gathering under a variety of circumstances. Most common are:

1. Required meeting is scheduled for a day when the worker is not usually scheduled to work. The employer tells all of the workers that attendance at the meeting is mandatory and a one- or two-hour shift is “scheduled” for this meeting. For those workers not “regularly scheduled” to work, the employee must be paid at least one-half of that employee’s usual or scheduled day’s work.

2. Required meeting is scheduled on the day a worker is scheduled to work, but after the worker’s scheduled shift ends.

a. If there is an unpaid hiatus between the end of the shift and the meeting, the employee must be paid, pursuant to Section 5(B) … at least two hours for reporting a second time in one day.

b. If the meeting is scheduled to immediately follow the scheduled shift, there is no requirement for the payment of reporting time no matter how long the meeting continues.
~~

In addition to the above exerpt from the Enforcemtn Manual, Callifornia law requires that employees be paid the overtime premium for all work beyond 8 hours in one day, and for all work beyond 40 hours in one week. Therefore, in the situation you describe, it appears that the Monday meeting time is regular work time and must be paid as any other work time. If the meeting plus your regular work time exceeds either 8 hours in one day or 40 hours in one week, the employer must pay you the overtime premium.

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 Apr 19, 2015 01:00 AM [EST]

Answer to i was fired 3 months ago. my employer paid me what they said they owe me. 3 months later they call and say i have a check. do they owe me wages from the day i got fired to now

Maybe. It depends on what the additional check is for.

California law requires employers to pay an employee's final wages at the time the employer ends the employment, or within 72 hours if the employee resigns without giving 72 hours notice. "Final wages" consist of regular pay, overtime pay, accrued and unused vacation pay, commissions that can be calulated, some bonuses and perhaps other components. It does not include unused sick leave.

If the employer does not pay 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 calendar 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.

posted Mar 29, 2015 03:25 AM [EST]

Answer to Is it unlawful termination if you were terminated because the person whom you were replacing rescinded their resignation?

You asked if this is an unfair termination, and very likely it is unfair. But no law requires an employer to be fair. 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. If so, an experienced plaintiffs employment attorney may be helpful.

What it sounds like is that the employee you replaced may have wanted more money or to havem ore status, or something; the employer declined to pay more or offer more; the employee gave notice; then either the employer changed its mind and offered more, or the employee decided the job market wasn't good and rescinded the resignation. None of that is illegal.

Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.

I'm sorry you went through this experience. You might ask your supervisor if she or he will serve as a reference for you, and you can ask for a written reference that says more than just name, dates of employment, etc. You can ask for a letter that talks about your accomplishments or good attitude or whatever.

I hope you can find replacement employment soon.

posted Mar 20, 2015 4:40 PM [EST]

Answer to Is a severance agreement binding if I left the company due to harassement about a disability?

If you signed a severance agreement with the company, it probably contains your agreement that you will not sue the company for any reason. Read it. There will probably be a paragraph in there containing the names of a lot of different laws, and the entirely of the paragraph says you agree not to sue. If you aren't sure or if you feel you were coerced into signing, or perhaps you were not mentally competent to make such an important decision at the time due to the harassment, then you should speak with an attorney.

And if you haven't signed an agreement, I suggest you speak with one or more experienced employment law attorneys with whom you can discuss the details of your situation. Of course HR will say the terms are not negotiable. But if you have something to negotiate with, such as a potential claim for disability discrimination, then it is entirely possible to negotiate no matter what HR said.

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 Mar 11, 2015 11:25 PM [EST]

Answer to Can an employer hire a personal friend without interviewing any other applicants?

While the manager's actions may have violated a company policy prohibiting nepotism, a violation of policy is not illegal. Nothing you mentioned indicates the employer or manager has done illegal. Employers, through their management team, 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. No law prevents an employer from playing favorites. And an employer can make decisions based on absurd, faulty or inaccurate information. 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. If so, an experienced plaintiffs employment attorney may be helpful.

Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.

I hope there is a good resolution to this situation.

posted Mar 8, 2015 2:46 PM [EST]

Answer to Can a requirement to re-pay a relocation assistance be enforced contractually if the offer letter states none of the letter is to be construed a contract in California

Maybe or maybe not. An attorney would have to review the entire offer letter AND any related communications before analyzing whether the repayment provision or any of the document is enforceable. Importantly, a contract can consist of more than one document.

Note, too, that oral contracts are enforceable in California, although there is an obvious issue of proving the terms of an oral contract.

The circumstances of your leaving the company also matter.

In addition, there are industry standards that a court may read into a contract that is silent on those terms depending on various factors.

I hope there is a good resolution to this situation.

posted Feb 9, 2015 11:16 AM [EST]

Answer to Demoted upon return from FMLA

If you take advantage of or request leave under the FMLA, your employer is prohibited from discriminating against you. It cannot take adverse action against you BECAUSE you needed FMLA-qualifying leave. Your employer cannot demote you – at least not lawfully. Your employer must return you to the same job or a substantially similar job in terms of pay, duties, hours, advancement opportunities, skill level, benefits etc.

Your employer can only demote you following your return from leave if the employer would have taken the same action if you had not gone on FMLA. In other words, going on FMLA shouldn't affect what the employer does one way or the other.

Also, your employer cannot demand that you provide information that employees who take any other kind of medical leave do not have to provide. And your employer cannot limit you in terms of job advancement, training, pay, work product, etc.

Please look at my guide on the FMLA for a better understanding of these rights: http:// http://www.avvo.com/legal-guides/ugc/family-and-medical-leave-fmla-summary-of-key-provisions or http://i.oc.gs/rodat />
If you believe your family leave rights have been violated, consult 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 Oct 4, 2014 11:12 PM [EST]

Answer to can i be demoted and my work schedule changed after returning to work after fmla maternity leave

First, congratulations on your growing family. It's unfortunate that this happy time is soured by your workplace problems.

Your post raises two issues. The first is your employer's failure to hire or promote you to a full-time, better job. 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.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states. 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. If so, an experienced plaintiffs employment attorney may be helpful.

You asked if you were not being given a full-time position due to your pregnancy. Evidently that is not the reason because certainly, since you worked at this job for many years, you were not pregnant throughout your employment. You may never learn why you are not being promoted into the full-time position. For whatever reason, this employer has decided you should not be bumped higher. It looks like your opportunities with this employer are limited. Given this, I hope you are looking for another job where your services are better appreciated.

The second issue is whether you were discriminated against because of your pregnancy; included in this is whether your taking FMLA played a part. Pregnancy discrimination is unlawful under California and federal law.

FEDERAL RIGHTS: In 1978, Congress amended the Civil Rights Act of 1964, Title VII 42 U.S.C. §§ 2000e to 2000e–17, by passing the Pregnancy Discrimination Act.

Under the Pregnancy Discrimination Act, "discrimination" means to treat a pregnant employee differently from non-pregnant employees, and adversely. The employee must be able to make a connection between the discriminatory treatment and the protected status (being pregnant). In other words, the employee will have to show that her pregnancy is reason the employer is treating her adversely. There are various ways to do this. Negative comments from supervisors or management; a sudden change in treatment (for the worse) as soon as or shortly after the employer learns about the pregnancy or the effects of pregnancy; or other incriminating conduct. Note it is not unlawful for an employer to apply the same leave of absence policy to pregnant and non-pregnant employees.

In your case, given the close time between your return from leave and your reassignment to a less attractive position, you have good reason to suspect that your pregnancy or FMLA leave played a part in the employer's decision. If so, it would most likely be illegal discrimination.

For information on pregnancy discrimination, see:
http://eeoc.gov/laws/types/pregnancy.cfm

For information on the Pregnancy Discrimination Act, see:
http://eeoc.gov/laws/statutes/pregnancy.cfm

This law is enforced by the Equal Employment Opportunity Commission (EEOC). www.EEOC.gov

Under federal law, leave taken for an employee's incapacity due to pregnancy, childbirth or related medical conditions is governed by the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA), just like leave for any other “serious health condition” of an employee. See my guide to the FMLA for more information: http://www.avvo.com/legal-guides/ugc/family-and-medical-leave-fmla-summary-of-key-provisions or http://i.oc.gs/rodat />
CALIFORNIA RIGHTS: California employers must comply with federal law, as above, and also must comply with state law. The California pregnancy disability leave law, Government Code section 12945(a) (PDLL), is part of the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA). The PDLL requires employers to provide employees up to four months of unpaid leave for disability caused by pregnancy, childbirth or a related medical conditions, and to do so without any negative consequences.

Under some circumstances, an employer may be required to transfer an employee affected by pregnancy, childbirth or related medical conditions to a different job. These circumstances do not appear relevant to your situation, going only on the limited information provided in your post.

California has its own family and medical leave law, the California Family Rights Act, Government Code section 12945.2 (CFRA). It is substantially similar to the FMLA, but an employee's incapacity due to pregnancy, childbirth or related medical condition is not included in the definition of “serious health condition.” This is usually beneficial to the employee because CFRA leave and pregnancy disability leave are two separate and distinct rights under California law. They do NOT run concurrently, as they do under the FMLA. Instead, an employee in California may take four months of PDLL plus 12 weeks of family leave, provided of course that the employee meets the other conditions of these laws.

Please look at my guide to unlawful discrimination: http://www.avvo.com/pages/show?category_id=6&permalink=what-is-unlawful-employment-discrimination--california-law which should help you understand lawful and unlawful discrimination, how to enforce your rights, and time limits.

Given the timing of the demotion and your previous satisfactory reviews, it makes sense for you to speak with one or more experienced employment law attorneys with whom you can discuss the details of your situation. Employment law is complicated and fact specific, so you cannot rely on any responses you receive here on MEL. 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, and you can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.

Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.

I hope there is a good resolution to this situation.

posted Sep 10, 2014 04:59 AM [EST]

Answer to Can a past RMO recieve unemployment compensation

Are you mis-reading the form? I don't see the question you refer to on the application. If you are referring to Question No. 35, it is not asking about RMOs. Question No. 35 reads "Are you now, or have you been in the last 18 months an officer of a corporation or union or the sole or major stockholder of a corporation? (a) If yes, include name of organization and your title or position." I've attached a copy of the application form.

EDD does not base eligibility for benefits on a job title or even job duties. 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.

posted Sep 9, 2014 01:57 AM [EST]