Answers Posted By Marilynn Mika Spencer

Answer to Can an employment lawyer help me with issues like health benefits and 401k package ?

Please read the following notices, then continue reading for my response. * * This message may NOT be privileged or confidential as it is being processed through a public website or another non-confidential system. To ensure confidentiality, always contact attorneys directly and not through an intermediary. * * * * No attorney-client relationship is created based on this communication. Please consult with an experienced employment attorney as soon as possible to better preserve your rights.* ** * Spencer Johnson McCammon LLP will not take any action on your behalf unless you and Spencer Johnson McCammon LLP sign a legal services agreement. * ** * These comments are for information only and must not be taken as legal advice. Spencer Johnson McCammon LLP has not read any details in your e-mail message or any attachments and has not analyzed your potential claim. Spencer Johnson McCammon LLP cannot and does not give legal advice based on contacts from web sites or e-mail, or based on partial information. * ** * All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Deadlines can be as short as just a few days. For referrals, you may contact the Lawyer Referral Service of the San Diego County Bar Association at (619) 231-8585, or the county bar association for your county. Also, you can find lists of plaintiffs employment attorneys at , , and . * *There is good news and bad news. The good news is that an attorney can most likely help you, provided the attorney has some experience in medical benefits and the related issues. The bad news is that you will probably have to pay attorneys fees by the hour for this assistance. There is a possibility that these fees will ultimately be paid by the employer, but without knowing details of your specific situation and the medical plan involved, it isn't possible to comment on this.Many excellent employment attorneys do not have experience working with employee benefits; this is actualy a different area of law and, if you work for the private sector, most likely implicates the federal Employee Retirement Income Security Act of 1974 (ERISA). ERISA is famously complicated and relatively few attorneys have added ERISA cases to their portfolio. If you work for a public sector employer in California, you are probably dealing with Cal-PERS. Few attorneys take these cases, too.There are additional issues raised by your question related to workers' compensation, the Family and Medical Leathe Americans with Disabilities Act (ADA),and the Fair Employment and Housing Act (FEHA). There may be retalliation or harassment involved. You may have medical privacy issues and even defamation issues. As you can see, there is a lot to sort out and doing so will take some time.I do not say this to discourage you. I just want you to be clear on what is involved so you will understand the reason you are most likely going to have to pay for legal services, at least until the case is fully analyzed, which would include consideration of whether there is a fee-shifting statute involved so that the employer pays the legal fees in the long run.If the amount of money involved is considerable, you certainly should be represented. If it is a relatively small amount, you may want to continue slugging it out alone or pay an attorney for a three hour (plus or minus) consultation to get a preliminary assessment.You can search for plaintiffs employment attorneys who have experience in employee benefits on 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. Remember to look for someone who specifies that she or he handles employee benefits. And it is usually best to contact several attorneys to compare them and see who is the right fit.I hope there is a good resolution to this situation. Marilynn Mika Spencer Managing AttorneySpencer Johnson McCammon LLP

posted Aug 13, 2017 3:09 PM [EST]

Answer to My job in California, is doing a lay off in my Dept. I'm on a corrective action right now. Can they hold off on paying me severance pay when everyone else is getting paid severance

I agree with Arkady Itkin, with two exceptions.

First, if the lay off meets the definition of a "mass lay off" as defined in the federal WARN Act of California's WARN Act, and if the severance is in lieu of the 60 days notice required by the WARN Act, then most likely your employer would have to pay you the severance, too. You can get a good overview of the WARN Act here: https://www.doleta.gov/programs/factsht/warn.htm />
Second, if the corrective action was issued to you illegally, then any negative consequences of being placed on corrective action are most likely illegal, too. What might make the corrective action illegal? Discrimination (say, you were treated differently because of your race, sex, disability, religion, etc.) or because you blew the whistle on a matter of public concern (say, you revealed that the employer is overcharging the public, polluting the neighborhood, etc.), or some other protected act on your part.

Otherwise, as Mr. Itkin states, severance is voluntary on the part of the employer and the employer can set its own terms for who is eligible. This freedom is based on California's at-will doctrine. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.thespencerlawfirm.com/tslf-at-will-california.php

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.

Good luck!

posted Aug 5, 2017 6:46 PM [EST]

Answer to OT when you've not yet acquired 40 hours & unpaid drive time

This answer is for general information and should not be taken as legal advice. Legal advice must be based on detailed, specific facts beyond what is possible to obtain on a public web site such as this. Plus, there is no confidentiality on a public web site. To protect your rights, you must obtain confidential legal advice from an attorney.
_______________________________________________________________

You probably had no idea that the answer to your question is as complicated as it is. Please read my response carefully!

First, I don't know why you are asking about .5 and 1.5 hours of overtime. Neither is correct. Generally, under California law, employees are entitled to be paid an overtime premium for all time worked above 8 hours in one workday (daily overtime), and for all time worked above 40 hours in one workweek (weekly overtime). Employees are not entitled to more than one premium per hour; for example, if an employee works 8 hours on Monday, Tuesday, Wednesday, and Thursday, and 10 hours on Friday, the employee has worked 42 hours in the week. The employee is entitled to 2 hours of overtime pay for the last 2 hours worked on Friday. The employee is also entitled to 2 hours overtime for the 2 hours worked in the week that are above 40. However, the employee is not entitled to a double recovery. For that week, the employee is entitled to a total of 2 hours of overtime.

Second, most California employees are entitled to one meal period of at least 30 minutes if they work 5 hours or more in one day (unless they are exempt from overtime). However, the employee and the employer can mutually agree to waive the meal period if the employee works no more than 6 hours in one day. Employees who work more than 6 hours in one day may not waive their meal breaks. The 30 minute meal break must be a full 30 minutes -- not 29 minutes -- and must be COMPLETELY free from duty. These 30 minutes must be “net.” They cannot include time spent walking to a time clock; the 30 minutes must be actual break time. The meal period should be given in the middle of the work day. The meal period is unpaid.

Therefore, evidently, your standard workday is 6 hours (10:00-4:00) from start to end. It should not matter if any of your time on Thursday was agreed upon as make up for leaving early on Wednesday because if it were, it would only add the 1 hour you left early on Wednesday, and 6 hours + 1 hour is still less than 8 hours.

You do not mention lunch, so for purposes of this answer I will assume you received a 30 minute break each day; I therefore deducted that half-hour from the total worked each day in the calculation below. Thus, you worked as follows:

Mon: 5.5 hrs. worked (6.0 hrs. – 0.5 for lunch)
Tues: 5.5 hrs. worked (6.0 hrs. – 0.5 for lunch)
Wed: 4.5 hrs. worked (6.0 hrs. – 0.5 for lunch = 5.5 hrs. – 1 hr. early leave)
Thurs: 11.0 hrs. worked (11.5 hrs. – 0.5 for lunch)
Fri: 5.5 hrs. worked (6.0 hrs. – 0.5 for lunch)
_____
30.5 hrs. TOTAL for the week

Because you worked less than 40 hours in the workweek, you would not be entitled to weekly overtime. You should receive 3 hours of daily overtime for working 3 hours above 8 on Thursday.

Now, if you did not receive a lunch, the situation is far more complicated. As I said above, most California employees should get at least a 30 minute meal break every day.

Employees are also entitled to one 10-minute rest period for every 4-hour period of work performed, or major fraction of the hour. If an employee works 3-1/2 hours per day, there is no rest period requirement. The rest period must be 10 full minutes -- not 9 -- and must be completely free from duty in most cases. These 10 minutes must be “net.” The rest periods should be given in the middle of each 4-hour block of time. The rest periods are paid.

Example A: The employee works an 8 hour shift from 8:00 a.m. to 4:30 p.m. There should be one 10-minute rest break at approximately 10:00 a.m. The meal break should be from approximately 12:00 p.m. to 12:30 p.m. There should be a second 10-minute rest break at approximately 2:30 p.m.

Example B: The employee works a 5 hour shift from 12:00 p.m. to 5:00 p.m. There should be one 10-minute rest break at approximately 2:30 p.m.

Example C: The employee works a 6 hour shift from 12:00 p.m. to 6:00 p.m. The employee and employer have agreed to waive the meal break. There should be one 10-minute rest break at approximately 3:00 p.m.

Example D: The employee works a 6 hour shift from 12:00 p.m. to 6:00 p.m. The employee and employer have NOT agreed to waive the meal break. There should be one 30-minute meal break from approximately 2:45 p.m. to 3:15 p.m.

The employer must make meal and rest breaks available to employees and cannot interfere with the employees’ freedom to take the breaks and cannot discourage employees from taking breaks. However, the employer does not have to make sure employees actually take the breaks.

If the employer has PREVENTED or INTERFERED WITH the employees' ability to take breaks, the employer may have to pay a penalty of one additional hour's pay for every day in which a meal break is not allowed, and one additional hour's pay for every day in which one or both rest breaks are not allowed.

There are some industries, such as the motion picture industry, that must follow different rules. You should always check with an attorney if you want to be certain about your rights.

Based on all of the above, you might be entitled to 3 hours of overtime + penalties for meal breaks and rest breaks, if the employer did not allow you to take these breaks. And if the employer treated all employees the same way with respect to denying breaks, there may be substantial liability involved, especially because an employee can recover the penalty for breaks going back in time for a limited period.

Now, assume your employer does not pay you all the overtime you are due and/or did not allow you to take all the breaks you are entitled to. Then what? Even if your employer violated 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 in this difficult economy and unable to find a new job. 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. California law requires an employer to pay an employee all accrued wages, vacation, PTO, and ascertainable commissions AT THE TIME the employer ends the employment relationship. If the employee quits without advance notice, the employer has 72 hours to make this payment.

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 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.

So when your employment with this employer ends 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.

For every work day, keep a log of all your work time, including the time you start working, the time you stop working, and the start and stop times of any breaks (meal or rest). Time spent walking to or from a time clock is considered work time, not break time. Many people find it helpful to keep this information on a calendar.

When you are ready, there are several ways to pursue your unpaid wages: 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 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.

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.

You have one year to pursue the meal and rest break penalties, regardless of whether you pursue them in court or otherwise.

Finally, you can settle your claims with your employer without filing any action at all, provided your employer is willing – and some are, in order to avoid legal action. This is usually more effective if you are working with an attorney.

No matter what path you choose, your best bet is always to consult with 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 Aug 3, 2017 6:43 PM [EST]

Answer to I have been laid off but have an open medical portion of a worker's comp claim. I am collecting unemployment. I just had surgery on my hand due to the WC claim - should I now be collecting state disability rather than unemployment since I can't work for a

Although I do not practice workers' compensation law, I know a lot about it because I work in a related area (employment law).

You should be guided by a workers' compensation attorney -- your own workers' compensation attorney.
These attorneys do not take any payment from clients up front. They are paid a small percentage of any permanent disability award the clients receive at the end of the case.

You can find a workers' compensation attorney on the California Applicant Attorneys Association (CAAA) web site: https://www.caaa.org. CAAA is the strongest California bar association for attorneys who represent injured workers. On the home page, click on the picture of the wheelchair above the words "Injured Workers." On the next page, click on the link to “Attorney Search” on the left side. Enter your city or any other information and click “Search.”

posted Aug 3, 2017 1:16 PM [EST]

Answer to After calling in sick for three days, I'm being forced to resign or sign a new offer letter with a significant pay cut by being put on unpaid admin leave?? Is this legal especially when I have 165 hours of pto saved up?

It is very possible your employer is violating the law, but it depends on the facts (as all legal questions do). There are various sources of POTENTIAL protection related to your medical status.

First, you may be protected by California's Paid Sick Leave law. You must check with an attorney to be sure this law applies to your situation. If it does, then, the law generally provides that if an employee has accrued sick leave available, the employer may not disipline the employee for using that leave:

"An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article."
(Lab. Code § 246.5, subd. (c)(1).)

Second, if the medical condition that resulted in your need for sick leave is due to a disability as defined by law, the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) and the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) may provide some protection. Please look at my guide to the ADA: http://www.thespencerlawfirm.com/tslf-ada.php and also on the differences between the ADA and California’s more generous FEHA: http://www.thespencerlawfirm.com/tslf-feha-vs-ada.php. The ADA applies to employers with at least 15 employees; the FEHA requires only 5 employees. These laws protect you from discrimination (adverse treatment) DUE TO disability and also require the employer to provide reasonable accommodation (change in the manner in which work is done) so you can do the main parts of the job (essential functions). A leave of absence can be a proper reasonable accommodation.

Third, there is limited protection if the illness or injury is caused by a serious medical condition as that is defined by law. You may be protected under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) and the California Family Rights Act, Government Code section 12945.2 (CFRA) if all of the following is true: (a) your employer has at least 50 employees who work within 75 miles of one another; and (b) you have worked for this employer for at least one year all together, even if not consecutively; (c) you have worked for this employer at least 1,250 hours in the immediately preceding year; and (d) you, a child, a spouse or a parent, have a serious medical condition as defined by the FMLA. The FMLA allows employees to take leaves of absence from work without repercussion, up to a maximum of 12 weeks per year. Leave can be in increments as short as fractions of an hour.

Please look at my guide to the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) to see if that law applies in your situation: http://www.thespencerlawfirm.com/tslf-fmla.php. California’s CFRA is the same as the FMLA in all areas other than pregnancy disability and enforcement.

Finally, if the condition is due to on-the-job injury, is caused by work or is made worse by work, California’s workers' compensation laws may provide some relief. You can find a workers' compensation attorney on the California Applicant Attorneys Association (CAAA) web site: https://www.caaa.org. CAAA is the strongest California bar association for attorneys who represent injured workers. On the home page, click on the picture of the wheelchair above the words "Injured Workers." On the next page, click on the link to “Attorney Search” on the left side. Enter your city or any other information and click “Search.”

Your rights under each of these laws are independent of one another. That is, you may be entitled to protection from each of these laws at the same time.

Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment 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, and you can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope there is a good resolution to this situation.

posted Jun 27, 2017 1:03 PM [EST]

Answer to Lost my job due to an error on my degrees

Based only on the information you provided, I do not see any case against the University of Phoenix. Evidently, the University's representative told you she or he had "no idea how long it would take to obtain the archives." The Univesity did not promise you it would obtain the transcript by a date certain and you had no basis to assume it would.

Additionally, even if you had provided the transcript immediately, the employer may have changed its mind about hiring you. It had the legal right to do so unless it made a firm promise to hire you upon receipt of the transcript within seven (or ten, or whatever) days.

Finally, even if the employer hired you, it would have had the legal right to fire you one minute later, except in limited circumstances. 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.

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 am sorry you had to learn the harsh reality of employment law in this way.

posted Dec 19, 2016 3:45 PM [EST]

Answer to Am I entitled to overtime?

I *almost* agree with Mr. Itkin! Most likely he read your facts too quickly or there was a typo because he calculated that you worked 2 overtime hours on Tuesday but you wrote that you worked 1 overtime hour.

First, my response assumes you are not exempt from overtime and that your employer designated a standard workweek (Sunday through Saturday).

A summary of California overtime law is:

Under California law, most non-exempt employees are entitled to overtime if they work over 8 hours in one day or over 40 hours in one workweek. The employee is not entitled to two overtime payments for the same hours but is entitled to the most beneficial calculation (see application below).

The overtime rate is one and one-half times an employee’s regular rate of pay for:
– all time worked above 8 hours per day up to 12 hours per day; and
– the first 8 hours of work on the seventh consecutive day of work in one workweek.

The overtime rate is two times an employee’s regular rate of pay for:
– all time worked above 12 hours in one day; and
– all time worked beyond 8 hours on the seventh consecutive day of work in one workweek.

The regular rate of pay includes hourly pay, salary, piecework pay, and commissions. At times, determining the regular rate of pay can be complicated. If your regular rate of pay is not obvious, you may need to consult with an attorney.

An employer must pay an employee overtime per the above rates even if the employee’s overtime work was not approved. However, the employer is free to discipline an employee who worked unapproved overtime.

In your specific case, you worked:

Mon: 8 hrs. – no OT earned

Tue: 9 hrs. – 1 hr. OT at 1.5 times regular rate

Wed: 10 hrs. – 2 hrs. OT at 1.5 times regular rate

Thu: 14 hrs. – 4 hrs. OT at 1.5 times regular rate and 2 hrs. OT at 2.0 times regular rate

Fri: 10 hrs. – 2 hrs. OT at 1.5 times regular rate

You worked a total of 51 hours during the week and should be paid OT for 11 of those hours because you are entitled to overtime for all hours worked above 40 in one workweek. You reach the same total (11 hrs. of OT) if you add up the number of daily overtime hours.

Because you were entitled to 2.0 times the regular rate for time worked above 12 hours in one day, you are entitled to 2 hours of double time for the 13th and 14th hours you worked on Thursday, not just 1.5 times the regular rate.

So . . . for this week, you should have been paid a total of 8 hours of overtime at 1.5 time the regular rate and 2 hours of overtime at 2.0 times the regular rate. If you were paid correctly for Monday through Thursday, then you are entitled to 2 overtime hours for Friday.

posted Dec 18, 2016 4:49 PM [EST]

Answer to I work in San Diego, the new minimum wage starts on January 1st. If I start working at 1130 pm on 12/31 do I get the new minimum wage for the other 7 and half hours that I will work on January 1st?

Based on the plain meaning of the words in the ordinance (an "ordinance" is a city, county, or district law), you should be paid the increased minimum wage for the 7.5 hours you will work on January 01, 2017 and for all hours worked as of 12:00 a.m. (midnight) on January 01, 2017.

As I indicated, my assessment is based on the plain language of the relevant part of the ordinance. It states:
____________________

§39.0107 Minimum Wage

(a) Employers must pay Employees no less than the Minimum Wage set forth in this section for each hour worked within the geographic boundaries of the City.

(b) The Minimum Wage is an hourly rate defined as follows:
(1) Starting July 11, 2016, the Minimum Wage is $10.50.
(2) Starting January 1, 2017, the Minimum Wage is $11.50.
. . . .
____________________

There is no "carve out" or exception for a workday that begins on December 31, 2016.

You can read the entire ordinance here: http://docs.sandiego.gov/municode/MuniCodeChapter03/Ch03Art09Division01.pdf. In addition to discussing the minimum wage, it also covers sick leave and enforcement.

posted Dec 18, 2016 4:00 PM [EST]

Answer to Can I be fired by my employer for the following in California? I was put into a role that was previously held by 2 senior managers. I didn't get a promotion or an increase and they put a junior analyst under me. I was never changed in the system to a Mana

This certainly sounds unfair! Unfortunately, it is probably perfectly legal. 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.

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 Dec 18, 2016 3:48 PM [EST]

Answer to I was of work on std 7 mo. After surgery. I have been back a yr now but not accruing vacation time.

What matters is your employment status with the employer.

If by "STD" you are referring to a leave of absence for a temporary disability, as defined and allowed by the employer's policies, then there should not have been a break in service; your employment should be continuous and there may have been an error in classifying you as a new hire.

If by "STD" you mean you were receiving "short term disability" payments from an insurance provider, then that will not affect your employment status; these payments only pertain to income replacement while disabled from work. Your employer may have terminated you at the time you temporarily left work.

However, if your employer terminated you because of your disability, it may have violated the Americans with Disabilities Act (ADA) or the Fair Employment and Housing Act even though it later re-hired you. Please look at my guide to the ADA: http://www.thespencerlawfirm.com/tslf-ada.php and also my guide to the differences between the ADA and California’s more generous FEHA: http://www.thespencerlawfirm.com/tslf-feha-vs-ada.php.

I suggest you speak with one or more plaintiff-side (employee-side) employment law attorneys who have experience with disability discrimination and reasonable accommodation with whom you can discuss the details of your situation. Be sure to investigate or ask right away if the attorney represents employees with disabilities because not all attorneys are experienced in this area.

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.

For a detailed consultation that includes a meaningful review of your documents and facts, you may need to pay hourly. Plaintiffs employment attorneys in California charge anywhere from $250 to $750 an hour depending on many factors including experience, area of law, geographic location, work load, interest in the case, difficulty of the case and more. You should expect to need at least three hours for this kind of consultation, although it is always possible your situation will be much easier and faster to figure out.

I hope there is a good resolution to this situation.

posted Dec 18, 2016 3:46 PM [EST]