Answers Posted By Marilynn Mika Spencer

Answer to If I take FMLA do I have to disclose information about my surgery to my Corp office?

No, you do not have to disclose the reason for the surgery in order to receive FMLA. Your physician only has to certify that he or she is treating you for a "serious health condition," as defined by the FMLA.

An employee may be protected under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) 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, or an immediate family member (spouse, child or parent) has, a serious medical condition as defined by the FMLA.

Very generally, a serious medical condition is more than a cold or scraped knee; it will require professional medical attention and will last for several days or more.

The FMLA is a federal law that provides up to 12 weeks of unpaid leave to employees who have a serious medical condition or who have responsibilities for an immediate family member with a serious medical condition. The time can be taken all at once or in increments of one day or even one hour. When the employee returns from leave, the employer must put the employee back into the same position held before the leave, or a substantially equivalent position that has equal or similar pay, equal or similar duties, equal or similar working conditions, etc.

If you are protected by the FMLA, then your employer can request medical documentation but is not entitled to know the diagnosis or treatment plan. The employer can insist on knowing the start and end dates of the need for leave.

If you take advantage or request leave under the FMLA, your employer is prohibited from discriminating against you. It cannot take adverse action because you needed FMLA-qualifying leave. For example, your employer cannot demand that an employee who takes FMLA leave provide medical information that employees who take any other kind of medical leave do not have to provide. Also, your employer cannot limit you in terms of job advancement, training, pay, work product, etc.

Please look at my guide to the FMLA for a better understanding of these rights: http://www.thespencerlawfirm.com/tslf-fmla.php. />
If you believe your family leave rights have been violated, consult with an attorney.

posted Nov 11, 2016 6:31 PM [EST]

Answer to I had a mini stoke in Sept due to stress and my Dr. says its work elated. he took me off work until jan 12 and my employer put me on FMLA... I have the approved papers. I got a call today from my employer that they want me to come in and go over some fina

An employer is allowed to contact an employee without is on leave for minimal work-related purposes so that the employer can continue its operations in the employee's absence. It's easy to see that calling an employee just to obtain a password, for example, is minimal. However, coming to the workplace and working does not appear to be minimal and is likely against your doctor's instructions.

Try sending an e-mail to the employer and asking for details, such as how much time is needed, why it must be done on-site and not at home, why it cannot wait until you have recovered, etc. Ask for a written response. Then send this information to your doctor and ask if this is within the restrictions your doctor imposed. Probably it is not.

Note you want all this in writing because you want a record in case it is necessary in the future to prove what took place.

posted Nov 9, 2016 9:53 PM [EST]

Answer to Two week notice and repay relocation.

California's at-will policy is not the determining factor. What matters are the terms under which the relocation payment was made. If the payment required repayment, the terms should be stated in the original documents. Many employers require repayment if an employee quits without good reason before a certain length of time has passed or if an employee is fired for cause. If you have such a requirement and gave enough notice so that your repayment period ended on or before your last day, the employer cannot manipulate the dates so that you are now stuck with repayment. Also, if you were terminated by the employer bargaining unit not paid for two more weeks, you are probably owed waiting time penalties.

California law requires employers to pay an employee's final wages at the time the employer ends the employment, or within 72 hours if the employee resigns without giving 72 hours notice. "Final wages" consist of regular pay, overtime pay, accrued and unused vacation pay, commissions that can be calculated, some bonuses and perhaps other components. It does not include unused sick leave.

If the employer ends the employment, the payment must be made at the place of termination.

If the employee quits without giving 72 hours notice AND does not request that final wages be mailed to a particular address, then these payment must be made at the office of the employer within the county where the work was performed.

If an employee previously authorized direct deposit, that authorization is immediately terminated when an employee quits or is discharged, and the employer must make the final wage payment as above UNLESS the employee voluntarily authorized the direct deposit AND the employer makes the payment on time, as described above.

If the employer does not pay as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit.

posted Nov 9, 2016 9:49 PM [EST]

Answer to Can an employer use the defense that they weren't notified that I was terminated for not paying me my final paycheck?

What a ridiculous "defense." Your foreman is an agent for your employer and when your foreman terminated you, your employer terminated you. Your final pay was due to you at that time.

California law requires employers to pay an employee's final wages at the time the employer ends the employment, or within 72 hours if the employee resigns without giving 72 hours notice. "Final wages" consist of regular pay, overtime pay, accrued and unused vacation pay, commissions that can be calculated, some bonuses and perhaps other components. It does not include unused sick leave.

If the employer ends the employment, the payment must be made at the place of termination.

If the employee quits without giving 72 hours notice AND does not request that final wages be mailed to a particular address, then these payment must be made at the office of the employer within the county where the work was performed.

If an employee previously authorized direct deposit, that authorization is immediately terminated when an employee quits or is discharged, and the employer must make the final wage payment as above UNLESS the employee voluntarily authorized the direct deposit AND the employer makes the payment on time, as described above.

If the employer does not pay as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every calendar day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit.

You can pursue your penalties and any unpaid wages through the Division of Labor Standards Enforcement (DLSE) without any cost to you. The DLSE is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm.

You can pursue the penalties and any unpaid wages in Small Claims Court.

You can retain an attorney to pursue the penalties and any unpaid wages, though it might be difficult to find an attorney if all you have due is the penalties. The DLSE is a good option for you.

Good luck!

posted Nov 9, 2016 9:37 PM [EST]

Answer to My last scheduled day was November 5th, I entitled to the Final Wages payout law?

It sounds like your manager was trying to get out of paying you when required. However, if there is a history of you not being scheduled to work but then the employer calls you in to work, perhaps the employer can make a case in its defense. If this is the first time it's ever said such a thing or if it has never before called you in when you were not scheduled, it's excuse is weak.

Here is what is supposed to happen and what your options are:

California law requires employers to pay an employee's final wages at the time the employer ends the employment, or within 72 hours if the employee resigns without giving 72 hours notice. "Final wages" consist of regular pay, overtime pay, accrued and unused vacation pay, commissions that can be calculated, some bonuses and perhaps other components. It does not include unused sick leave.

If the employer ends the employment, the payment must be made at the place of termination.

If the employee quits without giving 72 hours notice AND does not request that final wages be mailed to a particular address, then these payment must be made at the office of the employer within the county where the work was performed.

If an employee previously authorized direct deposit, that authorization is immediately terminated when an employee quits or is discharged, and the employer must make the final wage payment as above UNLESS the employee voluntarily authorized the direct deposit AND the employer makes the payment on time, as described above.

If the employer does not pay as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit.

There are a few ways to move to collect wages or penalties due:

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.

An attorney may be able to get your money more quickly. 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.

Finally, you can file a claim in small claims court.

Good luck!

posted Nov 8, 2016 2:26 PM [EST]

Answer to the Corporation that I work for changed the classification of my position from salaried/exempt to hourly/non-exempt. Can I quit and collect unemployment? Do I have any options to fight this?

The important issue is not whether you are paid a salary or paid hourly, but whether you are exempt from overtime or not exempt from overtime. An employee can only be exempt from overtime based on the what the law says, not based on what your employer decides.

Being paid a salary has nothing to do with how much you should be paid. Being paid a salary as opposed to being paid hourly is just for the convenience of the employer. Usually it is to an employee's benefit to be classified as non-exempt.

Most likely your employer changed you from salaried/exempt to hourly/non-exempt because it had incorrectly (that is, illegally) mis-classified you as exempt when you should have been classified as non-exempt.

The law assumes all employees are entitled to overtime, so the employer has to prove that someone is not. If you are non-exempt, you are legally entitled to overtime after 8 hours per day or 40 hours per week, per California law.

Also, if you are non-exempt, in an 8 hour work day you are entitled to at least 30 minutes for a meal break. You are entitled to two rest breaks of at least 10 minutes. If you are not allowed these breaks, you are probably entitled to an extra hour's pay for each day in which you did not receive a meal break, and also an extra hour of pay for each day in which you did not receive one or both rest breaks.

If you are not paid all overtime and other time due to you at the time your employment ends, you are entitled to waiting time penalties. This means your pay continues after your last work day; this pay continues until you are paid in full for all past due wages (including overtime and vacation pay), up to a maximum of 30 days. Note these are calendar days, not work days. You are also entitled to interest at the statutory rate of 10 per cent per annum.

So why would you want to be exempt from overtime?

It is not always easy to determine if an employee is exempt or not. An incomplete summary of the three main categories of employees who are exempt are:

EXECUTIVE/MANAGERIAL: The employee: has duties involving management of the full enterprise or a recognized division; customarily directs two or more employees; can hire or fire, or whose recommendations are given weight; regularly exercises independent judgment; earns a salary of $3,120 per month or more; and does all of this at least 51 per cent of the time.

ADMINISTRATIVE: The employee: performs office or non-manual work that is directly related to management policies or business operations OR performs administrative functions in a school in work directly related to instruction; regularly exercises independent judgment; regularly and directly assists an owner or bona fide executive or administrator; performs specialized or technical work under only general supervision; executes special assignments; earns a salary of $3,120 per month or more; and does all of this at least 51 per cent of the time.

PROFESSIONAL: The employee: is licensed to practice law, medicine, dentistry, optometry, architecture, engineering, teaching or accounting; works in (a) a learned or artistic professions that requires advanced knowledge in a field or science acquired by specialized instruction, or (b) works in a recognized artistic field, or (c) works in an intellectual capacity;and does all of this at least 51 per cent of the time.

Please do not try to decide if your job is exempt or not based on the above summaries; as I said, they are incomplete. Also, there are a number of jobs and circumstances that are exempt from overtime: http://bit.ly/18Xt68G. />
If you worked overtime or were not allowed to take breaks before the change in your classification – so that you may be entitled to overtime pay or to missed-break penalties – you will be well-served to speak with one or more plaintiffs employment attorneys with whom you can discuss the details of your employment.

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 7, 2016 7:53 PM [EST]

Answer to harassment and retroactive pay decrease

You have raised extremely serious issues. Although it is not clear what you are going through at work it sounds like you might have potential claims involving wage theft, tax fraud, and associational discrimination based on sexual orientation. These are fact-specific claims.

I urge you to consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation because you need an assessment of the specific facts. The MEL board is not set up to handle the kind of detailed analysis that is needed to offer helpful guidance. 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. The employer or whoever is involved in the dispute can read everything written here.

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 6, 2016 01:41 AM [EST]

Answer to I resigned, and now my hours are cut to nothing in the final week despite planning events. Rights?

You cannot get paid for this time unless you had a contractual right to payment. In other words, there is no law that would require the employer to keep you on as an employee after you gave notice, but perhaps you have a contract that requires this.

Employers always want employees to be considerate and provide notice, but then employers like yours turn around and penalize employees who give that notice. Unfortunately, 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. 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.

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 3, 2016 6:47 PM [EST]

Answer to can I ask my HR FMLA for my mom resides full time in nursing home?

Perhaps. It depends on her medical status. An employee may be protected under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) 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, or an immediate family member (spouse, child or parent) has, a serious medical condition as defined by the FMLA.

Very generally, a serious medical condition is more than a cold or scraped knee; it will require professional medical attention and will last for several days or more.

The FMLA is a federal law that provides up to 12 weeks of unpaid leave to employees who have a serious medical condition or who have responsibilities for an immediate family member with a serious medical condition. The time can be taken all at once or in increments of one day or even one hour. When the employee returns from leave, the employer must put the employee back into the same position held before the leave, or a substantially equivalent position that has equal or similar pay, equal or similar duties, equal or similar working conditions, etc.

If you are protected by the FMLA, then your employer can request medical documentation but is not entitled to know the diagnosis or treatment plan. The employer can insist on knowing the start and end dates of the need for leave.

If you take advantage or request leave under the FMLA, your employer is prohibited from discriminating against you. It cannot take adverse action because you needed FMLA-qualifying leave. For example, your employer cannot demand that an employee who takes FMLA leave provide medical information that employees who take any other kind of medical leave do not have to provide. Also, your employer cannot limit you in terms of job advancement, training, pay, work product, etc.

Please look at my guide to the FMLA for a better understanding of these rights: http://www.thespencerlawfirm.com/tslf-fmla.php. />
More specifically, If your mother is in the last phase of her life, it is likely her medical status can be described in terms that meet the definition necessary to qualify for FMLA. Speak with her doctor to discuss this and explain your interest in taking FMLA and confirm whether the doctor can describe your mother's medical status in terms of a "serious health condition." Your mother most likely has an underlying medical condition, such as heart disease, that has put her close to death.

All that said, most nursing homes are open in the evenings and you may be able to arrange your visits for non-work hours to avoid using up your FMLA allotment. Many people choose to preserve their FMLA as much as possible because one never knows what the future brings.

Finally, I applaud your interest in spending as much time with your mother as possible. She is fortunate to have a loving, compassionate child like you.

posted Nov 3, 2016 12:50 PM [EST]

Answer to do i have a case if i was terminated for saying to my boss Im going to ask as to my rights at DLSE?

You will need to show that you were terminated because of the threat to contact DLSE and not because the employer thought you did things your way and not how it wanted you to do them, not because of the disagreement that took place in front of everyone, and not for any other reason.

Assuming you could make this showing, you still may have a difficult time because the DLSE does not have jurisdiction (authority to act) over all employment disputes. It only has jurisdiction over wage and hour disputes and some whistleblower retaliation claims. Nothing you described appears related to a wage and hour dispute or whistleblower activity.

In addition, a threat to contact a remedial agency such as the DLSE, OSHA, etc. may be insufficient to support a claim of wrongful termination in violation of public policy. Some courst require an actual contact plus the employer's knowledge of the contact. I have not researched this recently so do not know the current state of the law off the top of my head. Perhaps another attorney will respond who has this information.

You may wish to consult with an attorney regarding the termination. Before you do, you should know that 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.

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 3, 2016 12:34 PM [EST]