Answers Posted By Marilynn Mika Spencer

Answer to CAN I BE FIRED FOR MISSING WORK DUE TO MY ASTHMA

There are various sources of POTENTIAL protection related to your medical status.

If the condition 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 on the ADA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada and also on the differences between the ADA and California’s more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true. 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).

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 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 on 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.avvo.com/pages/show?category_id=6&permalink=family-and-medical-leave-fmla-summary-of-key-provisions. 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. To find a workers' compensation attorney, please look at the membership list of the California Applicant Attorneys Association (CAAA) http://caaa.org/cs/. CAAA is the strongest bar association in California for attorneys who represent injured workers.

Your rights under each of these three 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.

____________________________________________
Marilynn Mika Spencer
The Spencer Law Firm
2727 Camino del Rio South, Suite 140
San Diego, CA 92108
(619) 233-1313 telephone // (619) 296-1313 facsimile
mspencer@spencerlawoffice.com


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

posted Jun 1, 2012 5:29 PM [EST]

Answer to Do I have a case for wrongful demotion?

Your situation may have a strategic solution more than a legal solution. As Mr. Itkin suggested, there is generally no legal protection for personal tensions in the workplace. However, there are many situations where a creative attorney can be extremely helpful in working out a resolution.

And there may be a legal solution, too, though it is hard to tell from your question. For example, if the subordinate made allegations to the GM which the GM accepted as true without a non-biased investigation, and your sex, race, age, disability, or other protected category was even a part of that assumption, the employer may have engaged in discrimination. This may indeed be what happened, based on your explanation of events. The difficulty, of course, is in knowing what took place behind closed doors, but difficulty is not the same as impossibility.

There are other possible avenues to follow, but it would take far too long to summarize them here.

For your information, a hostile work environment is a legal term of art that means there is ongoing unlawful harassment. Unlawful harassment must be based on a protected category, such as race, sex, sexual orientation, 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. 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.

Unlawful harassment is itself a form of unlawful discrimination. "Discrimination" means "to treat differently." Not all discrimination is unlawful. 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.

It is clear you value your job don't want it to end under these circumstances, and of course you don't want to take a pay cut. You owe it to yourself to spend a little time and money and figure out if there is a legal or strategic solution to try. You will probably have to pay an attorney by the hour for this consultation, but depending on the compensation level for your job, it may be money well spent.

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.

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

Marilynn Mika Spencer
____________________________________________
Marilynn Mika Spencer
The Spencer Law Firm
2727 Camino del Rio South, Suite 140
San Diego, CA 92108
(619) 233-1313 telephone // (619) 296-1313 facsimile
mspencer@spencerlawoffice.com

posted Apr 30, 2012 11:04 AM [EST]

Answer to Equal Pay Discrimination?

The Equal Pay Act of 1963, 29 USCA § 201 (EPA) is a federal law that makes it unlawful to pay employees of one sex a different amount than employees of the other sex, all things being equal. The hard part in these cases is the "all things being equal." The comparators would include the job title, actual work performed, experience, education, and more. The EPA isn't used as often as other laws because it is so hard to compare things such as experience. More often, we use the Civil Rights Act of 1964, Title VII 42 U.S.C. §§ 2000e to 2000e–17, which prohibits discrimination based on sex (and other bases).

As you describe your facts, it certainly is worth looking into a Title VII claim, and possibly an EPA claim. There are legal as well as strategic considerations. How you handle this is dependent on specific facts, and no on-line question and answer board is set up to handle the kind of detailed analysis that is needed in your situation. These boards works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone, including your employer, can read the discussions here so they are not confidential.

The amount of money at issue is enough to justify obtaining a consultation with an experienced plaintiffs employment attorney. You may need to pay for the type of detailed consultation you need. Realistically, a free half-hour or hour consultation will not be long enough to go over the details and conduct any related research. Based only on the facts you mentioned in your question, you can expect three to ten hours of attorney services, just to see if there is something worth pursuing. I realize that is a large spread of hours, but I don't know your facts so am only estimating. And your goals, and strategy, both play a role, too: Do you want to make sure you keep your job regardless of any pay increase? Do you want to sue? Do you want to try to figure out how to improve your chances for a pay increase? Do you want help negotiating? Do you want something else? Do you want to learn your options?

Plaintiffs employment attorneys in California charge between $250 and $700 per hour, based on many factors, including experience, location, status, interest in the case, availability, and more. Based only on what you mentioned, I suggest you make sure whomever you consult with, it you choose to consult with an attorney, has considerable experience because strategy will be a strong consideration.

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. There are a number of excellent and experience plaintiffs employment attorneys in southern California!

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

Marilynn Mika Spencer

____________________________________________
Marilynn Mika Spencer
The Spencer Law Firm
2727 Camino del Rio South, Suite 140
San Diego, CA 92108
(619) 233-1313 telephone // (619) 296-1313 facsimile
mspencer@spencerlawoffice.com

posted Apr 17, 2012 4:10 PM [EST]

Answer to Is the restriction in labor agreement between the old employee and me still valid?

No one can answer your question without looking at the exact language of the provision in the offer letter, as well as the entire agreement. Given the amount of money involved, it makes sense to spend $1,000 or so and find out your obligations. It's likely the offer letter was not written with this situation in mind, in which case legal principles of contract construction will apply, as well as case law. Also, you may have information that will show the employer included that provision in bad faith, perhaps knowing the possibility the business will be sold. If so, there may be a way around the contract provision, and you may have a claim for detrimental reliance/promissory estoppel as well.

Promissory estoppel 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); AND

-- a second party changes its position, circumstances or actions in reliance on that promise; 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 a promise, not enforcing a contract. This is because one element of a contract is that all parties give up or offer to the other something the party is not already required to provide. In the promissory estoppel situation, the promise was gratuitous, so it did not form the basis of a contract.

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.

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

posted Apr 6, 2012 6:42 PM [EST]

Answer to offer rescinded due to pre-employment test. Any options?

*** 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. ***


I'm sorry this happened to you. Based on what you wrote, you may have the basis for a claim of discrimination (failure to hire) based on disability. Please look at my Avvo guides:

-- on the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment; />
-- on medical examinations and confidentiality under the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=medical-information-and-the-ada--inquiries-and-confidentiality; and

-- to the differences between the ADA and California's more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true.

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.

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

posted Apr 2, 2012 02:32 AM [EST]

Answer to Can an employer request a non-smoker and scent free employee?

*** 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. ***

I am not aware of any protection for smokers. Certainly 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) have no such protection.

An employer can require employees to be non-smokers and scent-free even if they do not work in a clean room.

California employment is most often at-will, per Labor Code section 2922. “At-will” employment allows an employer to do almost anything it wants with respect to employment. It can rearrange, modify, change, eliminate, and add jobs, hours, compensation, benefits, schedules, duties, titles. It can hire, fire, transfer, demote, promote, train, and not train employees. These changes must take effect prospectively (in the future). For example, an employer cannot change your pay rate for work you have already done, but can change it for work you have not yet done.

There are a just a few things that might prevent an employer from doing what it wants:

(1) public policy;

(2) Constitutional (civil service) rights;

(3) a collective bargaining agreement (union contract);

(4) an individual contract;

(5) contracts for a specific term; or

(6) employment policies.

(1) 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 and pregnancy.

In this context, “discrimination” means to treat differently from others who are not in the same protected group, but are similarly situated. “Discrimination” does not mean an employer has to be fair, or has to make good decisions.

In California, a person complaining of discrimination must file a claim with an administrative agency before he or she can file a lawsuit. The person can file a claim with either the California Department of Fair Employment and Housing within on year of the discriminatory act, or with the federal Equal Employment Opportunity Commission (EEOC) within 300 days of the discriminatory act.

The DFEH web site is: http://www.dfeh.ca.gov/ />
The EEOC web site is: http://www.eeoc.gov/ />
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 statutes. There are various ways to enforce these rights.

When people talk about “wrongful termination,” they are really talking about wrongful termination in violation of public policy. For a termination to be “wrongful,” it must violate a public policy. An employer cannot change terms of employment or fire you if the reason for the change is against the law. 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.

(2) Constitutional rights, sometimes called civil service rights, apply to employees of government agencies, who are entitled to due process with respect to employment decisions. Typically, these rights are enforced through a system the employer agency established, or which another government body established. Many of these claims must be filed within six months of the offending event.

(3) A collective bargaining agreement(CBA) includes all the grievances, arbitrations and memoranda of understanding that interpret or supplement the CBA. A CBA is similar to a small body of law that applies only to the group of job classifications covered by the CBA. The rights and responsibilities of the employer, employees, and union are as stated in the CBA. A CBA is enforced by the union, not by a private attorney. Time limits can be extremely short, sometimes just two or three days.

(4) There are three kinds of contracts that a court may enforce. The first is a written contract which expresses (states) some or all terms of employment. People who work in certain industries are more likely to have this kind of contract: science, the arts, upper management, law, academia, intellectual property, finance, and a few more. The contract will include terms of employment which the employer and the employee have to follow. If a party does not, the other party has a potential claim for breach of contract. These contracts may be enforced in court or by arbitration, depending on the terms of the contract. In California, a person can usually enforce a written contract by filing a lawsuit within four years of the breach.

Some documents look like employment contracts but are not. These documents are an employer’s way of recording that employment is at-will. Terms usually address a lack of rights rather than rights the employee has, and nearly always require the employee to sign a statement agreeing the employment is at-will.

The second type of contract court may enforce is an express oral contract, but these can be very difficult to prove. A person has two years from the date of breach to enforce an oral contract.

Finally, even if there is no express contract, a court may decide there is an implied contract; generally, that this particular employee in this particular situation had a right to be treated differently. Getting a court to recognize an implied contract is an even higher hurdle than getting a court to recognize an oral contract. Courts rarely find implied contracts, and when they do, they are limited to long-term employees with a certain kind of employment history.

(5) Some employees are hired for a specific term (duration). For example, an employee may be hired to work from March 15 through November 24, 2012. In this situation, the employer cannot end the employment during the specified term unless the employee violates significant terms of employment or fails to perform.

(6) Some employers have written or unwritten policies or employee handbooks. These are effectively contracts, but instead of applying to one employee, they apply to all or many employees. Many – perhaps most – employer policies include a statement that employment is at-will, or that the handbook does not create a contract, or that the employer can change the terms at any time. Enforcing these policies can be difficult because terms often conflict.

posted Mar 22, 2012 6:55 PM [EST]

Answer to Termination upheld at Skelly

*** 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. ***


It's impossible to know how to answer your question without having any of the facts. You are in a much better place to know how likely you are to win an appeal. Did the employer have good reason to fire you? Did the union file a grievance? If so, what is the status? How long had you worked there? Why were you fired?

It's probably better to have a resignation on your resume than being fired. But these days, most people don't quit their job until something else is lined up, especially if they worked at the same place for a long time. It might be better to have an agreed-upon reason for the resignation, rather than a voluntary resignation. Maybe there were family issues that needed immediate attention, or you decided to go to school, or some other reason. I'm not suggesting that you lie, but you can certainly shine the best possible light on what happened.

posted Mar 17, 2012 12:22 AM [EST]

Answer to If employer have an intention of hiring you, and you quit your previous job, can you sue?

*** 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. ***




You may have a claim for promissory estoppel, a legal doctrine that many states recognize. Promissory estoppel 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); AND

-- a second party changes its position, circumstances or actions in reliance on that promise; 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.

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 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.

Marilynn Mika Spencer

____________________________________________
Marilynn Mika Spencer
The Spencer Law Firm
2727 Camino del Rio South, Suite 140
San Diego, CA 92108
(619) 233-1313 telephone // (619) 296-1313 facsimile
mspencer@spencerlawoffice.com

posted Mar 11, 2012 11:36 AM [EST]

Answer to Can an employee go back to work without a Dr release following a serious injury?

I don't know what Mr. Koury based his response on because your question does not provide any facts on which to base a response. Certainly there is no way to make a moral judgment that "you are not a good person" based on what you wrote.

Why don't you have a doctor's release? Is it premature for you to return? Are you having trouble getting the note from the doctor? More information is necessary before anyone can give you a meaningful response.

____________________________________________
Marilynn Mika Spencer
The Spencer Law Firm
2727 Camino del Rio South, Suite 140
San Diego, CA 92108
(619) 233-1313 telephone // (619) 296-1313 facsimile
mspencer@spencerlawoffice.com

posted Feb 26, 2012 6:57 PM [EST]

Answer to termination during maternity leave

Congratulations on your pregnancy!

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.

____________________________________________
Marilynn Mika Spencer
The Spencer Law Firm
2727 Camino del Rio South, Suite 140
San Diego, CA 92108
(619) 233-1313 telephone // (619) 296-1313 facsimile
mspencer@spencerlawoffice.com

posted Feb 26, 2012 6:54 PM [EST]