Answers Posted By Marilynn Mika Spencer

Answer to I had a Skelly for notice of intent to discharge. The offered to reduce to a 30 day suspension of which of accepted. 3 days later they sent a letter of discharge. Can they rescind their off with out telling me?

Without seeing the documents, any attorney who responds would only be speculating. Perhaps the acceptance was not in the form the employer requested or needed. Perhaps the acceptance never reached the right hands. Perhaps the employer changed its mind and doesn't think you have what is needed to effectively oppose its actions. There may be dozens of other explanations, good or bad, for what happened.

Also, even if the employer initially agreed to the reduced penalty, it may have received new information that caused it to change its mind (or it may claim it did). If that is the case, it should have sent you a new notice of proposed termination and gone through the whole process again.

However, you may also have a case of unlawful retaliation or a violation of due process. Again, it's not possible to know without reviewing the documents and speaking with you, and perhaps speaking with witnesses.

I suggest you speak with one or more plaintiff-side (employee-side) employment law attorneys who have experience with public sector employers with whom you can discuss the details of your situation. Be sure to investigate or ask right away if the attorney represents public sector employees because not all attorneys do.

To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

For a detailed consultation that includes a meaningful review of your documents and facts, you may need to pay hourly. Plaintiffs employment attorneys in California charge anywhere from $250 to $750 an hour depending on many factors including experience, area of law, geographic location, work load, interest in the case, difficulty of the case and more. You should expect to need at least four hours at a minimum for this kind of consultation, though seven-to-ten hours might be more realistic, depending on how involved the situation is.

I hope there is a good resolution to this situation.

posted Dec 18, 2016 3:36 PM [EST]

Answer to I have been a bartender at a ski resort for 6 years. Usually they just send me an email at the beginning of the season. This year I never received an email so I contacted my supervisor by text and he replied we don't have any open spots. So after I spoke

I'm sure you were counting on this job and what I have to tell you is not what you wanted to hear. Unfortunately, employment laws in non-union workplaces are very harsh. Employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious, or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.thespencerlawfirm.com/pdf/tslf-at-will-california.pdf. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.

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

You may be able to get a good reference letter from this employer so don't be afraid to ask. And be sure to file for unemployment benefits because you may quailify, depending on when you worked.

posted Dec 11, 2016 12:43 PM [EST]

Answer to I was laid off on October 28, 2016 and HPE direct deposit my benefits check twice.

I am sorry to hear about the layoff. These are hard times, even though the economy has been improving.

If you were paid money you were not entitled to, there are consequences for trying to keep it. HPE can sue you to recover the money. A lawsuit, even in small claims, sucks up a lot of time AND is a public record, so any future potential employer or creditor can easily see the court records. If you will be looking for work in the future, HPE may not give you a good reference or even a neutral reference; it may give you a negative reference. In almost every situation I can think of, a negative reference will be completely lawful as long as the information conveyed is truthful. Do you want HPE to tell a potential employer that you refused to return a payment you were not entitled to receive?

posted Dec 10, 2016 4:19 PM [EST]

Answer to Current company being purchased - have to go through re-hire

I'm sorry to hear about this. It's rough to lose your job at any age, but when one is 63 it can be very hard to find a new job due to age discrimination. I hope the new company hires you!

If current employees must be hired by the new company, then evidently your employment with the prior company has ended or will end; most likely you will be laid off. If you are hired by the new company or any other company, you will be working so not eligible for unemployment benefits. If you are not hired by the new company or any other company, you will remain unemployed through no fault of your own and therefore eligible for unemployment benefits as long as you otherwise qualify (see below). With respect to unemployment benefits It does not matter that your prior company is no longer around because it paid into the unemployment insurance fund during your employment (at least it was supposed to).

Generally, a person claiming unemployment benefits (a “claimant”) is eligible for benefits if ALL of the following is true: he or she is (1) unemployed due to no fault of his or her own; (2) physically able to work; (3) actively seeking work; (4) ready to accept work immediately; (5) has received enough wages during the base period to establish a claim; and (6) meets eligibility requirements each week benefits are claimed. An overview of these requirements can be found on the web site of the California Employment Development Department (EDD) http://www.edd.ca.gov/Unemployment/Eligibility.htm.

You must look for work when unemployed. Look at Craig's List every day; read the classified ads; register on indeed.com, monster.com, etc. Send out resumes. Make calls. And keep a log of every effort you make because sometimes this becomes an issue.

Be sure to file for unemployment benefits immediately, as soon as your current job ends, because there is a waiting period before benefits kick. Information on filing a claim for unemployment insurance benefits and a link for filing a claim online can be found here: http://www.edd.ca.gov/Unemployment/Starting_Your_UI_Claim.htm.

I hope everything turns out well.

posted Dec 4, 2016 04:49 AM [EST]

Answer to Is there anything I can do?

First: The answer 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 whoever else you are in a dispute with can read everything written here.

Second: If your whistleblower activity was in 2000, it will be very difficult for you to demonstrate that what is happening to you now is due to what you did 16 years ago. It isn't impossible but it would be a very, very, VERY steep uphill battle.

Third: But you are represented by a union. Is there some reason you do not believe your union is doing what should be done? No one knows the workplace or the rules better than the union. Do what you can to help the union help you and to bring your case to arbitration. That is the probably the fastest way to get this reviewed by a neutral. And, for you, the only way that won't cost you anything.

Even if you find an attorney to take your case on a contingency, you are most likely going to be responsible for costs of suit along the way, which could run tens of thousands of dollars. If you win in the end, there is a good chance the employer sill have to reimburse those costs – but in the meantime, you are out of pocket. And there is no guarantee you will get everything back.

More importantly, many employment attorneys, even excellent ones, will not take a case if a union is involved because of potential preemption.

Also, unless you can make a connection to the whistleblowing that is far more recent than 16 years, it will be hard to find a contingency attorney and might be hard to find any attorney. Consider that an ordinary employment law suit, without much complication, easily consumes $100,000 to $500,000 in attorney's fees. Add in your obvious complications (whistleblowing issue, union preemption, break in service, lack of performance reviews, ano attorney is going to risk losing that much in legal fees if you don't have strong enough facts. So, again, your best bet is probably working with your union.

Employment law is complicated and fact-specific. You may wish to consult with an experienced plaintiffs employment lawyer. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope there is a good resolution to this situation.

posted Nov 27, 2016 7:44 PM [EST]

Answer to My boss is making us stay until 4:30pm but let's everybody else leave early for the holidays, just because HR reprimand him for not being fair with us we clock in, others don't, so he even fired HR for defending our rights they never told us we can take 2

It is really difficult to understand what your situation is. If your boss fired HR, then he must be the owner of the company or very high up in management. If so, then it is not likely he is simply responding in anger to HR. Perhaps HR explained to him a way in which the company was legally vulnerable for his manner of operating the business.

Regardless of what happened between your boss and HR, you should know that employees have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.thespencerlawfirm.com/pdf/tslf-at-will-california.pdf. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.

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

I hope there is a good resolution to this situation.

posted Nov 27, 2016 7:32 PM [EST]

Answer to Can city make changes to notice of suspension and change to dismissal?

DO NOT QUIT . . . at least not until you speak with one or more experienced employment law attorneys with whom you can discuss the details of this complicated situation. AND immediately contact your union to file a grievance for dismissal without proper cause. Help the union in any way you can. Time limits to file grievances are very, very short.

If you quit, you are very likely to ruin any chance you have to protest the termination either through the legal process or the union grievance process. You are also likely to eliminate your opportunity to receive unemployment benefits.

Being able to give you any useful guidance will depend on specific facts, and your facts look more complcated than is typical. 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 whoever you are in a dispute with can read everything written here.

Generally: You may have legal protection if you have a disability as defined by the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) (a physical or mental impairment that limits one or more major life activities).

You may have legal protection if you have a disability as defined by the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) (a physical or mental impairment that SUBSTANTIALLY limits one or more major life activities).

Both laws prohibit an employer from firing an employee because of disability, discriminating against an employee in any way because of disability, and both laws require an employer to provide reasonable accommodation to an employee with a disability if doing so will help the employee perform the essential functions (main parts) of his or her job.

Reasonable accommodation may include transferring some non-essential job duties to other employees, providing equipment or devices to enable you to do the main functions of the job, allowing extra time off work for things related to the disability, and more. Also, the employer may not treat you differently from other employees because of your disability. For example, the employer may not refuse to promote you, deny you training or otherwise limit your job opportunities, and the employer may not fire you because of your disability. Please look at my guide to the ADA: http://www.thespencerlawfirm.com/tslf-ada.php and my guide to the differences between the ADA and California's more generous FEHA: http://www.thespencerlawfirm.com/tslf-feha-vs-ada.php. />
As you have already pointed out, your employer's actions might have violated the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA). The FMLA is a federal law that provides up to 12 weeks of unpaid leave to employees who have a serious medical condition as that is defined by the FMLA, or who have responsibilities for an immediate family member with a serious medical condition. In general, a serious medical condition is something that lasts more than a day or two and requires medical attention. Note the 12 weeks of leave may be taken all at once or broken up into units of one month, one week, one hour or even less, provided the total does not exceed 12 weeks. At the end of the leave, the employer must return you to the same position or one that is substantially similar. Please look at my guide to the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA): http://www.thespencerlawfirm.com/tslf-fmla.php. />
California has a law that is very similar to the FMLA: the California Family Rights Act, Government Code section 12945.2 (CFRA). The main differences between the FMLA and the CFRA are with respect to pregnancy issues. Also, the FMLA allows two years to pursue a claim, and the CFRA allows one year.

I cannot urge you strongly enough to speak with qualified, experienced employment attorneys before quitting or before deciding what to do. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope there is a good resolution to this situation.

posted Nov 27, 2016 7:28 PM [EST]

Answer to Bonus after termination in state of california

Bonuses are not established by law, which means every employer sets up its own rules for eligibility for a bonus. Carefully read those rules to see if you qualify, paying attention to whether former employees are eligible, former employees whose employment ended under some circumstances but not others, etc. Also note whether the bonus is actually a commission (percentage or reward earned due to sales) because if so, most commissions belong to the employee who substantially procured the sale.

posted Nov 12, 2016 6:57 PM [EST]

Answer to I was working under a W2 on a 6 month contract. When the contract ended I took another position on a night shift. After 2 weeks I can no longer continue working these hours, can I still claim unemployment from my previous employer?

It depends on why you can non longer work the night shift job. Generally, a person claiming unemployment benefits (a “claimant”) is eligible for benefits if ALL of the following is true: he or she is (1) unemployed due to no fault of his or her own; (2) physically able to work; (3) actively seeking work; (4) ready to accept work immediately; (5) has received enough wages during the base period to establish a claim; and (6) meets eligibility requirements each week benefits are claimed. An overview of these requirements can be found on the web site of the California Employment Development Department (EDD) http://www.edd.ca.gov/Unemployment/Eligibility.htm.

posted Nov 11, 2016 6:38 PM [EST]

Answer to Company pre-paid monthly per diem expense & wants repayment for time not used

If your employment was governed by a collective bargaining agreement (contract) between a union and the employer, then you should take this issue up with the union immediately. Most negotiated benefits can only be addressed through the grievance procedure, and only the union can file a grievance.

If the amount of your final paycheck is crystal clear, then you can file a claim for unpaid or late-paid final wages through the Division of Labor Standards Enforcement. 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.

If the amount of your final check is dependent on analyzing or interpreting the contract, then your remedy will be the union grievance procedure.

posted Nov 11, 2016 6:37 PM [EST]