Answers Posted By Marilynn Mika Spencer

Answer to I have an employee who was been on a worker comp leave since 12-30-09

Why do you want to terminate the employee? Have you considered the employee may be perfectly capable of performing his or her job, or another job you have available, even with the 13 per cent disability? Perhaps all the employee needs is a reasonable accommodation.

posted Feb 26, 2012 6:52 PM [EST]

Answer to Could it be considered as duress having to sign a no suit agreement to get severance?

I'm sorry this happened to you.

First, any meaningful comments to your question will turn on specific facts. The MEL board is not really set up to handle the kind of detailed analysis that is needed in your situation. MEL works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone can read the discussions on MEL so they are not confidential. Your employer or whomever you are in a dispute with can read everything written here.

If you are having second thoughts about the agreement you signed, you MAY have some recourse if you are 40 years old or older and the employer failed to comply with the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (ADEA), which includes the Older Workers Benefit Protection Act (OWBPA). There are a number of requirements here, including allowing 21 days to review the agreement before signing and 7 days to revoke the agreement after signing.

Employers often buy their way out of potential lawsuits by offering money in exchange for the employee's promise not to sue for any of the potential claims identified in the agreement. Employers know quite well how vulnerable employees are when suddenly faced without any income, and they use this to their advantage. In most circumstances, these are perfectly lawful. However, an employee and employer cannot agree to waive workers' compensation claims or unemployment claims in such an agreement.

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
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 6:50 PM [EST]

Answer to Notice pf Proposed Termination

Please see my response to your duplicate question: http://www.myemploymentlawyer.com/questions/Skelly.htm />
____________________________________________
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 6:36 PM [EST]

Answer to Skelly

I have strong concerns about the advice you are getting. First, if the hearing officer and your department head are one and the same, any advice you get is from your adversary, and you should not rely on it without having a darn good reason. If your union is telling you to resign, I assume that is based on information you provided to the union; if it is based on information the union is getting from your department, then again, it is information from an adversary and it makes no sense to rely on it without reason.

Public sector employees in California often have a Constitutional property interest in their jobs, as well as a liberty interest. Skelly hearings are part of a public sector employee's due process rights. As the other attorney who responded indicated, it is inappropriate for a decision maker, or anyone in the same line of supervision, to also be the hearing officer. This would be a fundamental denial of due process.

Skelly hearings also provide the basis for any appeal you may file. You want to be sure the evidence and facts provided at the hearing are as much in your favor as possible.

Know that while your union representative is perhaps very knowledgeable about your workplace, the union rep is not an attorney. Unions are only responsible for protecting rights that are contained in the memorandum of understanding (contract) between the employer and the union. Some union reps are simply fabulous and have tremendous knowledge of other areas; some are very limited in their knowledge. You may benefit from consultation with an attorney, although it is possible you will have to pay an attorney on an hourly basis for the consultation, and perhaps for eventual representation at the Skelly hearing.

Generally, individuals are eligible for unemployment benefits if they are unemployed through no fault of their own. This means that in California, if individuals are otherwise eligible, they are only disqualified from receiving benefits for two reasons: if the were fired for misconduct, or if they quit without cause. "Misconduct" is an act by the employee against an employer's interest. Being incompetent, slow, unable to perform to the employer's standards, and more is NOT misconduct. Quitting without cause is not specifically defined. In some cases, the Employment Development Department and/or the Unemployment Insurance Appeals Board have determined that an employee who quits in lieu of being fired is still eligible for benefits. This is because in reality, the employer is the one who ended the employment relationship, not the employee.

You can find out more about the relevant precedent benefit decisions at http://www.edd.ca.gov/UIBDG/. />
Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney, and given the seriousness of your situation -- that you may lose your job -- I urge you to do so. 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. Make sure any attorney you contact specifies that he or she has experience representing employees in the public sector.

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 Feb 26, 2012 6:31 PM [EST]

Answer to Can I re-write the non-compete, non-solicit contract myself or do I need an attourney to do it?

I assume you are the same asker in Redondo Beach who posted a question about 1099s.

As a business owner, you really need to have an attorney with whom you can discuss your legal issues privately and confidentially. The MEL board is not really set up to handle the kind of detailed analysis that is needed in your 1099 situation. MEL works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone can read the discussions on MEL so they are not confidential. Your legal adversary can read whatever is written here.

If you would like some referrals to business attorneys in your geographic area whom I find ethical and competent, please contact me privately at mspencer@spencerlawoffice.com and include a copy and paste of your messages and my response, to refresh m memory.

And I agree with the other response that non-competition agreements are unenforceable in California. There are a few exceptions, but again, this is something to go over with an attorney in private.

____________________________________________
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

*** 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. ***

posted Feb 26, 2012 6:10 PM [EST]

Answer to Is there anything anybody can do for me? I am desperate at this point!

*** 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 is happening and I can see how uncomfortable it makes you. That said, I don't think you will like my answer.

First, unlawful harassment 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. 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.

It does not appear the harassment you are experiencing is based on your membership in a protected category. If I am wrong, please let us know.

Employees have limited rights in the workplace. The following should help you understand those rights and your employer's obligations, now and in the future.

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.


While I have only the limited information you provided in your question, I don't see any unlawful activity by the employer. If I had access to more facts, my opinion might be different.

If there is no legal remedy, there may be a strategic plan you can follow that will improve your working conditions. The MEL forum is not really set up to handle the kind of detailed analysis necessary in your situation. It works best for short, general questions with short, general answers. More importantly, it is not confidential and your employer could be reading every word here. I note you used a lot of names of people at work, as well as in the company. Many employers conduct routine Web searches for any mention of its name. It is quite possible your employer will learn about your communication.

One comment: Perhaps because you are already angry, your question comes across as if you misunderstand your employment rights. Remember, these are very limited. Your employer owes you no courtesy whatsoever. I disagree that this is good social policy, but I don't get to make the laws. And no employer wants to retain an employee who complains, is unhappy, disrespectful, or who bad mouths the company, especially in a public forum like MEL. Often, humility and professionalism will accomplish far more than a demand or statement of entitlement. Again, I have no idea how you appear to your employer or at work, but the way your question is worded sounds as if you expect the employer to conform to your needs, rather than for you to conform to its needs. I wish this were the way things worked, but it is not.

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 Feb 3, 2012 6:20 PM [EST]

Answer to I have been a permatemp for 7 years, is this legal?

*** 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. ***

Unfortunately, it is probably lawful for your employer to treat you this way. Start with the understanding that there is no obligation for an employer to provide benefits of any kind to any employee. Therefore, the employer can decide the terms under which it will provide any benefits it decides to offer. An employer is entitled to offer benefits to some employees just because the employer likes them better than others. The only exceptions to this are discussed below.

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.

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.

A court may also enforce 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.

I'm not clear on the relationship between your employer and A&S (and I suggest you refrain from using any names or identifying information on a public web site such as this). If your pay check comes from A&S, then under California law, A&S is deemed your employer. A&S may contract with another entity, such as the entity you consider your employer, to provide staff.

If you have worked for seven years for the same employer, you can be proud of your work record. You may choose to look for a better job that provides you with benefits and treats you with more respect.

California employment law is detailed and complicated. Nearly everyone with a potential employment claim is better off with an attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.

*** 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. ***

posted Jan 10, 2012 02:31 AM [EST]

Answer to Can an employer cut my hours if i go on an interview?

Unfortunately, an employer can cut your hours under these circumstances. Your honesty and openness does not guarantee that your employer will appreciate you. Please review my summary of California's basic employment law, below. It will help you understand your current situation and will give you guidance for the future.

A Short Summary of California At-will Employment

Note: This guide is for information only and is not legal advice. Legal advice must be tailored to specific facts. This guide does not address all possible claims, exceptions or conditions related to the subject matter discussed.

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, color, 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 one year of the discriminatory act, or with the federal Equal Employment Opportunity Commission (EEOC) within 300 days of the discriminatory act.

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. Employees of government agencies have a right to advance notice of a final employment decision and an opportunity to explain why the decision should not be made. Usually, there are well-defined job duties for specific job classifications, established pay rates, and policies that apply to the entire workforce. 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) is a contract between an employer and a labor organization (union). The 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.

A court may also enforce 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. These contacts are enforced by filing a lawsuit in court.

(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. The policies are written by the employer for the benefit of the employer. 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. An employer's policies may include an enforcement procedure, such as submitting a complaint to personnel or human resources. If not, the policies may be enforceable in a court of law, but enforcement can be difficult; terms often conflict, in that htey are written to appear as if employees have rights, but also include statements that employees do not have any rights and/or are at-will.

Note: This guide is for information only and is not legal advice. Legal advice must be tailored to specific facts. This guide does not address all possible claims, exceptions or conditions related to the subject matter discussed.

Additional Resources
California employment law is a complicated, fact-intensive subject. Nearly every plaintiff is better off with an attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.

posted Jan 7, 2012 4:30 PM [EST]

Answer to Employee termination PTO payout and termination cancellation thereafter

The following comments are for information only and should not be considered legal advice. Legal advice must pertain to specific facts. No attorney-client relationship is created based on this information exchange.

Under California law, PTO is considered wages, and any accrued PTO must be paid to an employee upon termination (see below), just like other wages. In the situation you describe, the employee terminated and the employer paid the employee, like it was supposed to. If the employer then re-hires the employee, the PTO accrual would start again from zero.

Wages due on termination: If an employee quits without notice, the employer must pay the employee all accrued wages, vacation and PTO within 72 hours of the termination. If the employee gives adequate notice or the employer fires the employee, then employer must make the payment on the employee's last date of employment.
* * * * *

Marilynn Mika Spencer is licensed to practice law before all of the state and federal courts in California, and can appear before administrative agencies throughout the country. 

posted Nov 25, 2011 03:04 AM [EST]

Answer to what can i do if my union did not respond to my call after i was fierd

I am a California attorney and not eligible to give legal advice in any other state. The following comments are for information only and should not be considered legal advice. Legal advice must pertain to specific facts. No attorney-client relationship is created based on this information exchange.

I’m sorry this happened to you. It’s obviously a bad situation. Most stewards will try their best to do the right thing, and to obtain justice. But because of the structure of unions, there are some union reps who are incompetent, just as there are attorneys and politicians who are incompetent. Many local labor unions are run by volunteers. Most union officers and representatives spend numerous hours of their own time conducting union business in the evenings and on the weekends.

Nearly all these elected and appointed officers started out as rank-and-file workers. They may be elected because of their work competence, seniority, intelligence, charm, good looks, big mouth, blustering, oratory skills, etc. – just like elected politicians. There is a range of skills and a range of experience among them. Most unions provide some training for their officers and stewards, but others do not have the resources to do so. The training provided varies widely.

With respect to shop stewards and other union representatives who protect the collective bargaining relationship, most of these are full-time employees of the employer, who do all of their union work on their own time, or in the lost-time situation mentioned above. The amount of loss-time may be limited by the collective bargaining agreement.

When a workplace has only one union representative, all kinds of things can get in the way. For example, the representative may be out of town, sick, or unavailable for any reason, so a deadline could easily be missed, like in your situation. Some unions have effective working relationships with the employer, and can sometimes get the employer to reconsider an employment decision even if the grievance deadline has passed. You might press your union representative to see if you can get any satisfaction in this way.

If you want to pursue a claim against your union, there is a six month time limit, called a statute of limitation, in which to do so. You can file an lawsuit in federal court or an unfair labor practice charge with the National Labor Relations Board.
But know that the standard for successful suits in such a case is very high. A union has to act in a way that is arbitrary, discriminatory or in bad faith in order to be liable for a screw-up; this is a standard far beyond negligence. These cases are very difficult to win.

If your termination was based on a statute, such as any of the laws prohibiting on-the-job discrimination, or protecting whistleblowers, then a private attorney can assist you. If you were fired because the employer was not satisfied with your work or conduct, it is unlikely there is any option other than your union.

Best wishes to you in this difficult and unfortunate situation.

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Marilynn Mika Spencer is licensed to practice law before all of the state and federal courts in California, and can appear before administrative agencies throughout the country. 

posted Nov 25, 2011 02:35 AM [EST]