Answers Posted By Marilynn Mika Spencer

Answer to What is the fastest way to stop retaliation?

There is no "fastest way" to do anything where the law is concerned. Legal actions, and therefore legal advice, is always fashioned to apply to a specific set of facts. We would need to know so much more to provide any meaningful guidance. Even then, there are a variety of procedures and strategies which might be helpful but which provide a different potential result. And there are always scores of variables that no one can predict or control, including the employer's response, which agency personnel is assigned to investigate, which judge is assigned, opposing counsel, and more. There is no shortcut.

Because you used the term "EEO," I suspect you are employed by the federal government. If this is so, there is a palette of different considerations and some additional ones. One thing to know is that all deadlines in the federal sector EEO process are very, very short. Some are as short as 20 days.

No one should go through this kind of case alone. Most discrimination attorneys represent clients on a contingency fee basis, which means the attorney's fees come from the final recovery. An individual is almost always better off with an attorney, and fares better financially even with a portion of the recovery going to the 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.

If you are a federal sector employee, please see my guide to the EEO complaint process for federal government employees: http://www.avvo.com/legal-guides/ugc/summary-of-federal-employees-eeo-discrimination-complaint-process?published=true.

posted Oct 19, 2012 1:11 PM [EST]

Answer to i want to file a lawsuit but dont know how what do i do

I don't know what happened to my paragraphs! Let me try again..........................................................................................................................................................................................................................................................................................................................................................** 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.**.........................................................................................................................................................................................................................................................................................................................................................The following comments are for information only and must not be taken as legal advice. The Spencer Law Firm has not analyzed the details of your potential claim. The Spencer Law Firm cannot and does not give legal advice based on contacts from web sites or e-mail, or based on partial information. The Spencer Law Firm will not take any action on your behalf unless you and The Spencer Law Firm sign a legal services agreement..........................................................................................................................................................................................................................................................................................................................................................The best thing you can do is speak with one or more experienced employment law attorneys and choose one as your attorney in the case. Your allegations are, of course, extremely serious and they should be treated with the importance they deserve..........................................................................................................................................................................................................................................................................................................................................................Before contacting the attorneys, it may help you to understand a bit about the law of harassment and the law of discrimination. .........................................................................................................................................................................................................................................................................................................................................................Unlawful harassment is a form of discrimination. To be unlawful, the harassment must be must be based on a protected category, such as race, sex, religion, disability, age (40 and over), pregnancy, or genetic information. Harassment can include verbal conduct, slurs, derogatory comments, comments or questions about a person's body, appearance, religious, or sexual activity, or indication of stereotyping. Harassment can also include offensive gestures, sexually suggestive eye contact or looks, mimicking the employee in an insulting way, and derogatory or graphic posters, cartoons or drawings..........................................................................................................................................................................................................................................................................................................................................................Harassment is unlawful when the conduct is either severe or pervasive enough to create an abusive environment. Severe conduct would include most physical contact and many types of threatening, vulgar or degrading conduct. Pervasive conduct is widespread, happens frequently and/or in many situations. One offensive statement is not pervasive, but the same comment made over and over again may be pervasive..........................................................................................................................................................................................................................................................................................................................................................Many people misunderstand the meaning of employment discrimination. “Discrimination” does not mean an employer has to be fair, respectful or has to make good decisions. Workplace discrimination means the employer treats one person or group differently from others who are not in the same group, but are similarly situated. .........................................................................................................................................................................................................................................................................................................................................................The only workplace discrimination that is illegal is discrimination that is against public policy. Public policy refers only to things that are specifically prohibited by a statute (law) enacted by the legislature, or prohibited by a regulation promulgated (established) by a government agency. Under federal law, public policy includes statutes prohibiting discrimination against people in specific protected groups, which include sex, race, national origin, disability, age (40 years and older), religion, marital status, pregnancy and genetic information. Sexual harassment is considered a form of sex discrimination. There is no federal protection for sexual orientation discrimination, but many states provide this protection..........................................................................................................................................................................................................................................................................................................................................................Public policy also protects people who blow the whistle on a matter of public concern, complain about improper wage and hour practices, and a few more rights protected by statute. .........................................................................................................................................................................................................................................................................................................................................................An employer cannot refuse to hire, refuse to promote, change terms of employment or fire an employee if the reason for the change is against the law (against public policy). For example, an employer cannot increase your workload because of your race, sex, national origin, religion, etc. or because you blew the whistle on safety violations.........................................................................................................................................................................................................................................................................................................................................................There are various ways to enforce these rights, depending on the particular public policy involved. For more information on employment discrimination, please see my Avvo guide on this subject: http://www.avvo.com/legal-guides/ugc/what-is-unlawful-employment-discrimination--federal-law?published=true .........................................................................................................................................................................................................................................................................................................................................................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 ..........................................................................................................................................................................................................................................................................................................................................................Marilynn Mika Spencer is licensed to practice law before all of the state and federal courts in California. She can also represent clients throughout the country in courts on a pro hac vice basis and before federal administrative agencies.

posted Sep 25, 2012 5:52 PM [EST]

Answer to i want to file a lawsuit but dont know how what do i do

** 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.**The following comments are for information only and must not be taken as legal advice. The Spencer Law Firm has not analyzed the details of your potential claim. The Spencer Law Firm cannot and does not give legal advice based on contacts from web sites or e-mail, or based on partial information. The Spencer Law Firm will not take any action on your behalf unless you and The Spencer Law Firm sign a legal services agreement.The best thing you can do is speak with one or more experienced employment law attorneys and choose one as your attorney in the case. Your allegations are, of course, extremely serious and they should be treated with the importance they deserve.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. Before contacting the attorneys, it may help you to understand a bit about the law of harassment and the law of discrimination. Unlawful harassment is a form of discrimination. To be unlawful, the harassment must be must be based on a protected category, such as race, sex, religion, disability, age (40 and over), pregnancy, or genetic information. Harassment can include verbal conduct, slurs, derogatory comments, comments or questions about a person's body, appearance, religious, or sexual activity, or indication of stereotyping. Harassment can also include offensive gestures, sexually suggestive eye contact or looks, mimicking the employee in an insulting way, and derogatory or graphic posters, cartoons or drawings.Harassment is unlawful when the conduct is either severe or pervasive enough to create an abusive environment. Severe conduct would include most physical contact and many types of threatening, vulgar or degrading conduct. Pervasive conduct is widespread, happens frequently and/or in many situations. One offensive statement is not pervasive, but the same comment made over and over again may be pervasive.Employment discrimination is against the public policy of California and the United States. Many people misunderstand the meaning of employment discrimination. “Discrimination” does not mean an employer has to be fair, respectful or has to make good decisions. Workplace discrimination means the employer treats one person or group differently from others who are not in the same group, but are similarly situated. The only workplace discrimination that is illegal is discrimination that is against public policy. Public policy refers only to things that are specifically prohibited by a statute (law) enacted by the legislature, or prohibited by a regulation promulgated (established) by a government agency. Public policy includes statutes prohibiting discrimination against people in specific protected groups, which include sex, race, national origin, disability, sexual orientation, age (40 years and older), religion, marital status, pregnancy and genetic information. Sexual harassment is considered a form of sex discrimination.Public policy also protects people who blow the whistle on a matter of public concern, complain about improper wage and hour practices, or who exercise voting rights, family leave rights, jury duty rights, domestic violence rights, and a few more rights protected by statute. An employer cannot refuse to hire, refuse to promote, change terms of employment or fire an employee if the reason for the change is against the law (against public policy). For example, an employer cannot increase your workload because of your race, sex, national origin, religion, etc. or because you blew the whistle on safety violationsThere are various ways to enforce these rights, depending on the particular public policy involved. For more information on discrimination law, please see my Avvo guide on this subject: http://www.avvo.com/legal-guides/ugc/what-is-unlawful-employment-discrimination--california-law. I hope you can resolve your situation and wish you the best. ____________________________________________Marilynn Mika SpencerThe Spencer Law Firm2727 Camino del Rio South, Suite 140San Diego, CA 92108(619) 233-1313 telephone // (619) 296-1313 facsimilemspencer@spencerlawoffice.com 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 .Marilynn Mika Spencer is licensed to practice law before all of the state and federal courts in California. She can also represent clients throughout the country in courts on a pro hac vice basis and before federal administrative agencies.

posted Sep 25, 2012 5:47 PM [EST]

Answer to Clarify separation agreement with confidentiality clause in terms of unemployment interview.

** 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.**The following comments are for information only and must not be taken as legal advice. The Spencer Law Firm has not analyzed the details of your potential claim. The Spencer Law Firm cannot and does not give legal advice based on contacts from web sites or e-mail, or based on partial information. The Spencer Law Firm will not take any action on your behalf unless you and The Spencer Law Firm sign a legal services agreement.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 . Dear Asker:Without having the exact language of your agreement available for review, I would say yes, you are able to speak freely during your telephone appointment with California Employment Development Department (EDD). The unemployment application process takes place in an administrative agency, EDD. If there is an appeal, it is before another administrative agency - the Unemployment Insurance Appeals Board (UIAB). Additionally, if you are seeking unemployment benefits, you are required to comply with the EDD interview and to answer truthfully.I cannot give an opinion on whether you might succeed in your claim for benefits because you have not described the working conditions you found intolerable in any that lets me know what happened. A description such as "abusive" is actually a conclusion . . . whatever it is that the supervisor did, you found it "abusive." But what did the supervisor actually do?Generally, a person claiming unemployment benefits (a “claimant”) is eligible for benefits if he or she is: (1) out of work due to no fault of his or her own; AND (2) physically able to work; AND (3) actively seeking work; AND (4) ready to accept work. In your situation, you will have to show that you are unemployed through no fault of your own. Know that EDD will compare the statements of each party, and makes a decision based on information received. In this regard, it will be helpful for you to review the law that EDD and the UIAB relies on before your interview so you can describe your situation in terms EDD and UIAB uses . . . but ONLY if doing so is truthful.There is a lot of helpful information on the EDD web site:Home pagehttp://www.edd.ca.gov/Unemployment/Eligibility requirementshttp://www.edd.ca.gov/unemployment/Eligibility.htmSummaries of the law (Benefit Determination Guide)http://www.edd.ca.gov/UIBDG/ Appealshttp://www.edd.ca.gov/Unemployment/FAQ_-_Appeals.htmPrecedent Decisions (law the administrative law judges rely on)http://www.cuiab.ca.gov/precedent_decisions.shtm Frequently asked questionshttp://www.edd.ca.gov/unemployment/FAQs.htmFiling a claim for unemployment benefitshttp://www.edd.ca.gov/unemployment/Filing_a_Claim.htmAfter your phone interview, you will receive a Notice of Determination stating if you are eligible for benefits or if they are denied. By the limited nature of the initial EDD process, it sometimes makes errors. For this reason, there is an appeals process. The Notice of Determination stating your claim was denied includes information about the appeal. You MUST file your appeal within 20 days of the date stated in that letter. Do not miss the deadline.In the appeal, make a brief statement just one or two lines long saying why you believe the denial was incorrect. Save your detailed argument and evidence for the hearing. Examples: “The company is wrong when it says I didn’t call in advance to report my absence. I called in and left a message on my boss’ answering machine at 7:38 a.m. saying I was in the emergency room.” “I did not voluntarily quit. My boss yelled at me in front of everyone and I was embarrassed, so I ran to the restroom until I calmed down. When I came back ten minutes later, the boss said I had walked off the job.”“I did the best I could but the company was not satisfied. My unsatisfactory performance was not intentional. I wanted to keep my job.”In a few weeks, you will receive a notice of an appeals hearing with the date, time and location. At the hearing, be prepared with as much evidence as possible (cell phone record showing the 7:38 a.m. call, witnesses who overheard the boss yelling, etc.).If your claim is denied, be sure to file the appeal. 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 at the hearing. For training, expect the attorney to need approximately three hours. For representation at the hearing, 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 past your hearing time if the previous case has not finished. Generally, as of 2012, plaintiffs employment attorneys in California charge between $250 and $700 per hour for legal services. The amount varies based on years of experience, geographic 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.Good luck in your claim!____________________________________________Marilynn Mika SpencerThe Spencer Law Firm2727 Camino del Rio South, Suite 140San Diego, CA 92108(619) 233-1313 telephone // (619) 296-1313 facsimilemspencer@spencerlawoffice.com

posted Sep 21, 2012 1:13 PM [EST]

Answer to Requested FMLA-am I on it?

I'm sorry to hear about your emergency medical condition!

The Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) applies 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 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. Leave is unpaid. During the period of the leave, the employee may elect to use any accrued sick, vacation or other leave and an employer can require an employee to use accrued sick leave.

The employer is required to provide employees with notice stating that leave is FMLA leave. The Department of Labor (DOL) administers and enforces the FMLA. From its web site:

"Employers are also required to provide notice of an employee’s eligibility and rights and responsibilities under the FMLA and to designate qualifying leave as FMLA and provide notice of that designation, including the amount of leave that will count against the employee’s FMLA entitlement to the employee."
http://www.dol.gov/compliance/guide/fmla.htm

If the employer does not provide you with this notice, it is possible the employer will not be able to count that leave time against your 12-weeks-per-year entitlement.

If you are eligible for FMLA leave and you notified your employer of the need, then you have met your obligations under the law. The employer is entitled to request that you provide medical certification within a reasonable time.

Please look at my Avvo guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA): http://www.avvo.com/pages/show?category_id=6&permalink=family-and-medical-leave-fmla-summary-of-key-provisions.

I hope your medical condition resolves quickly.

posted Aug 19, 2012 12:35 PM [EST]

Answer to Fired for accusation of being involve in stealing at work.

** 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.**The following comments are for information only and must not be taken as legal advice. The Spencer Law Firm has not analyzed the details of your potential claim. The Spencer Law Firm cannot and does not give legal advice based on contacts from web sites or e-mail, or based on partial information. The Spencer Law Firm will not take any action on your behalf unless you and The Spencer Law Firm sign a legal services agreement.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 . You are in a tough situation, I'm sorry to say. The harsh reality is 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 might be able to pursue a claim for defamation, if the facts are right. Defamation can be libel (written) or slander (oral). Generally, defamation is a false and unprivileged statement which exposes a person to hatred, contempt, ridicule or injury, or which causes the person to be shunned or avoided, or which has a tendency to injure the person in his or her occupation. Some kinds of defamation require the plaintiff to prove actual harm. Other kinds of defamation constitute defamation per se, which means harm is assumed due to the nature of the defamation.Now, with a better understanding of your legal rights -- which are very slim -- you may want to consider a strategic solution rather than a legal solution. First, if you have not (yet) been fired, it is important to do what you can to prevent termination because that is far easier than convincing an employer to reverse an action it has already taken. Understand your boss or someone else at the company may be scared of any consequences from what happened, may have misunderstood what took place, may be friends with or related to others involved, or could just be a bully who is picking on you because its easy or your boss thinks its easy. Maybe company policy is to fire everyone who might be trouble. Or maybe your boss feels there is something unsatisfactory about your performance but never told you about it.Sometimes it's helpful to tackle this kind of thing directly, but only if you can be professional and respectful in doing so. You might ask to speak with your boss in private, and if your boss agrees, ask if there is a reason the employer thinks you were responsible in any way for what happened.Maybe something took place that your boss misinterpreted, though probably not. But if so, you can explain your side. More likely your boss will not tell you what is really bugging him or her -- if there is anything -- but a mature conversation may cause your boss to change the way he or she acts toward you and maybe even result a change in the decision. Whatever you do, don't challenge your boss’ authority. Indicate at all times that you want only to continue your working relationship because you value your job and your boss’ guidance, and you want that relationship to improve. Explain how much you value your job and try hard to do it well. Point out your good work record, if you have one. Explain that you would never intentionally do anything against the company's interest. Do not blame anyone else even if you really believe someone else is at fault; there is no way such an accusation can benefit you. Only talk about yourself, how you want to do the job well, and that you regret the situation that took place. Ask what you can do to improve things so that the same situation (false accusation) doesn't happen again. Don't give your boss any reason to get angry. Don't tell your boss why you think he or she is doing this or did this . . . let your boss have a graceful way out rather than backing the boss into a corner. It is possible this could backfire, as could anything you do to try to fix the situation. For example, if you go to the boss’ supervisor or to personnel, your boss may become angry and lash out at you even more. However, if you approach your boss with respect (even if you don't feel it) and your boss overreacts, then you can go to your boss’ boss or personnel after that. And when you do, be respectful and use the same approach. You might follow up with a note thanking the boss (or HR, or whomever you spoke with) for hearing you out. Repeat that you want to do a good job and regret that this situation took place. Keep a photocopy of the note. Perhaps your boss or the company will see you in a more favorable light after this. Even if this doesn’t save your job, it may prevent the employer from fighting a claim for unemployment and may even result in a good job reference.Yes, I know it's annoying to have to do something like this when you didn't do anything wrong, but as I mentioned above, an employer doesn't even need a reason to fire you. And as we all know, the current economy is pretty tough, and we all need to keep our jobs. Employment rights come from the state and federal legislatures. One of the best things working people can do to improve their employment rights is to vote for candidates who have 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 the union already in place.I hope you can resolve your situation and wish you the best. Marilynn Mika Spencer is licensed to practice law before all of the state and federal courts in California. She can also represent clients throughout the country in courts on a pro hac vice basis and before federal administrative agencies.

posted Jul 23, 2012 6:53 PM [EST]

Answer to Which states laws to follow for resignation from an out of state employer?

*** 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. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on this web site as a service to the public, primarily when general information may be of assistance. A web site such as this is not an appropriate forum for an in-depth response or a detailed analysis for many reasons, including that the communication is not private. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***


Many out-of-state employers make this same mistake, and even many California employers, too. It is irrelevant that the employer is based in New York. If you work in California, you are a California employee.

You are correct that under California law, an employer is required to pay employees at the time of termination if the employee gives at least 72 hours notice:

“If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting.“ California Labor Code section 202(a).

If the employer does not do so, the employee's wages continue at the regular rate until the employer pays the employee in full, for a maximum of 30 days:

“If an employer willfully fails to pay . . . in accordance with Sections . . . 202 . . ., any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. An employee who secretes or absents himself or herself to avoid payment to him or her, or who refuses to receive the payment when fully tendered to him or her, including any penalty then accrued under this section, is not entitled to any benefit under this section for the time during which he or she so avoids payment. “ California Labor Code section 203(a).

In addition to these penalties, you are also entitled to interest at the legal rate of 10 per cent per annum.

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 can also pursue this claim via an attorney and you are entitled to reimbursement for your reasonable attorney's fees and costs. However, for a relatively small claim, it makes more sense to go through the DLSE.

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.

I hope you can resolve your situation and wish you the best.

posted Jul 18, 2012 3:57 PM [EST]

Answer to NEED A EMPLOYMENT LAWYER REFERRAL

Please act quickly. You have only 90 days to file a lawsuit in federal court after receipt of the EEOC right-to-sue letter.

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.

I hope you can resolve your situation and wish you the best.

posted Jul 2, 2012 1:00 PM [EST]

Answer to should i still get 25 hours a week?

I agree with Ms. Koehn.

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.

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 Avvo guide to the FMLA for more information: http://www.avvo.com/pages/show?category_id=6&permalink=family-and-medical-leave-fmla-summary-of-key-provisions. />
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.

Under some circumstances, an employer may be required to transfer an employee affected by pregnancy, childbirth or related medical conditions to a different job.

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.

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.

posted Jul 1, 2012 4:13 PM [EST]

Answer to Laid off soon after relocating to California

You may have a claim for promissory estoppel, which is recognized by most states. This doctrine allows a court to enforce a promise in the interest of justice if all of the following elements are present:

-- one party makes a gratuitous promise to another (that is, a promise it was not required to make, such as a job offer); AND

-- a second party changes its position, circumstances or actions in reliance on that promise (moves, quits another job, etc.); AND

-- that reliance was reasonable; AND

-- the second party was harmed due to its changed position, circumstances or actions.

Note this in this case, the court is enforcing the promise, not enforcing a contract.

In a promissory estoppel situation, a court could determine the (potential) employer was at fault for causing you to change your life in the expectation of a job.

Terms in an offer letter may make a difference. For example, the letter may contain "waffle words," such as "The employer can withdraw this offer at any time" or "This offer does not guarantee employment," or "This offer is contingent on passing a qualifying exam" or other similar language.

The interactions between the parties are also significant. It is helpful if there are written communications, such as e-mail messages, that show the employer knew you were relying on the promise. For example, if you told the employer that you were resigning your other job, relocating, or making other changes in your life because of your pending employment with the employer, these communications would support a claim for promissory estoppel.

The devil is in the details, so you must present your facts to an attorney in your state who can give you the dedicated attention your situation deserves.

You can find a plaintiffs employment attorney on the National Employment Lawyers Association (NELA) web site www.nela.org. NELA is the largest and most influential bar association in the country for attorneys representing working people. You can search by location and practice area. Also, NELA has affiliates in every state and many cities which are listed on the NELA site. Not all NELA attorneys are named on the web site or affiliate site. This should not influence your selection; attorneys can choose whether or not to purchase a listing in the national directory, and each affiliate has its own rules for listing.

I hope you can resolve your situation and wish you the best.

posted Jun 25, 2012 01:03 AM [EST]