Answers Posted By Marilynn Mika Spencer

Answer to My boss told two other co-worker that I am on LSD and Acid. I am the office manager for his office. Do I have a claim?

Good grief. Surely you realize this is not normal behavior. This is not a healthy, stable workplace. I suggest you start looking for another job immediately.

Assuming you were not on acid at the time the employer made the statements and assuming the statements were made as factual statements ("This employee is on LSD") as opposed to a statement of opinion ("It looks like/I think that this employee is on LSD"), then you might have a claim for defamation.

Defamation can be libel (written) or slander (oral).

Generally, defamation is a false and unprivileged statement which exposes a person to hatred, contempt, ridicule or injury, or which causes the person to be shunned or avoided, or which has a tendency to injure the person in his or her occupation. Some kinds of defamation require the plaintiff to prove actual harm. Other kinds of defamation constitute defamation per se, which means harm is assumed due to the nature of the defamation.

If you have not been harmed by these statements – your coworkers don't believe the statements, for example – even if your employer defamed you, you will not have any damages. If you do not have damages, the only suit that makes sense is an injunction requiring the employer to stop making these statements. You will have to pay an attorney to represent you in this action.

If you resign due to these statements, you might be entitled to unemployment benefits. You should consult with an attorney before taking this step.

I urge you to look for another job.

posted Oct 29, 2016 2:43 PM [EST]

Answer to Can an employer in California take away the remaining vacation as a disiplinary action.

This answer assumes you are not covered by a collective bargaining agreement (contract) between a labor union and your employer.

It depends on what you mean by "remaining vacation." If it is vacation you have already earned, then no, the employer cannot take it from you. In California, vacation is considered wages that are earned proportionately as the employee works. For example, if an employee is entitled to 10 days vacation per year and works 40 hours per week, then usually the employees earns 0.039 hours of vacation per hour worked (80 hrs. vacation divided by 2040 work hours per year = 0.0392156 hours vacation earned per hour). More simply, the employee will have earned 5 days of vacation after working 6 months; 2.5 days of vacation after working 3 months; etc.

If you are talking about unearned vacation, the employer can probably do this. Vacation is a benefit that is voluntarily offered by an employer; it is not required by law. Employers can provide benefits to some employees and not others, or not provide any vacation to anyone. However, an employer cannot deny or limit vacation for an illegal reason such as due to an employee's or group of employees' race, sex, age, whistleblowing, etc.

posted Oct 29, 2016 2:36 PM [EST]

Answer to I was offered a retention bonus to stay on after my company was acquired. If I don't want to stay on, am I still entitle to a severance package? What circumstances would make me entitled to decline the retention and ask for the severance package?

Severance packages are not required by law. Some employers offer them, at times in exchange for the employee signing a waiver of any claims against the company. Some employers have a policy that provides severance without any waiver requirement; you can check the employee handbook or ask personnel about this.Your employer may offer severance if it ends an employee's employment against the employee's wishes. It may consider your rejection of continued employment, even with changed circumstances, as a voluntary end to your employment.

Regarding your suppositions about travel, location, and duties of the new position, you may be able to negotiate a retention package that includes a guarantee that you will not be transferred or not be required to travel. Of course, this would only be likely if the employer strongly needs your continued services. Offering you 18 months pay for 12 months work is an indication you have some bargaining power.

posted Oct 29, 2016 2:28 PM [EST]

Answer to Is there statute of limitations on employer not disclosing to employee that paid vacation can be applied to unpaid FMLA?

You wrote "In August 2016 I went through the required procedure for getting medical leave" but then you wrote that this took place seven years ago. If this took place in August this year, you are still timely to take action. If this took lace seven years ago, you are way too late.

The statute of limitation to file a claim under the federal FMLA is two years. You can file with the U.S. Department of Labor or directly in federal court.

The statute of limitation for filing a claim under California's similar California Family Rights Act (CFRA) is one year. You can file this claim with the California Department of Fair Employment and Housing.

Here is a link for the US Dept of Labor’s page detailing the employer’s notice requirements under the FMLA:
https://www.dol.gov/whd/regs/compliance/whdfs28d.pdf

As you can see, there is more than one way an employer must comply with the law.

posted Sep 11, 2016 8:16 PM [EST]

Answer to Is it legal to hire me at a wage promote me next day and demote me 3 day later and pay cut also

Probably. Unfortunately, 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.

I hope there is a good resolution to this situation.

posted May 24, 2016 8:18 PM [EST]

Answer to When you go on vacation, upon returning can the employer change your work load without prior notification?

Probably. 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.

I hope there is a good resolution to this situation.

posted May 14, 2016 5:23 PM [EST]

Answer to My husband was fired last weekafter 25 years. He was paid his final wages that day but no vacation pay that was still on the books. 7 days according to his payroll person. How can he recover it? His ex boss wont budge.

Please see my answer to your duplicate post here: http://www.myemploymentlawyer.com/questions/My-husband-was-fired-last-weekafter-25-years-He-was-paid-his-final-wages-that-day-but-no-vacation-pay-that-was-still-on-the-books-7-days-according-to-his-payroll-person-How-can-he-recover-it-His-ex-boss-wont-budge-1.htm

posted May 7, 2016 5:13 PM [EST]

Answer to My husband was fired last weekafter 25 years. He was paid his final wages that day but no vacation pay that was still on the books. 7 days according to his payroll person. How can he recover it? His ex boss wont budge.

In this unusual circumstance, your husband's membership in the union is irrelevant to what his pay and vacation benefits are. What matters is whether he was in the bargaining unit – the group of job classifications covered by the union-employer contract (collective bargaining agreement). If he was paid differently from the contract specifications, ad if his vacation was earned per the employer's policies and not per the contract, and if he was not considered part of the union for any other purpose, then your husband's employer is probably just trying to pull a fast one.

If your husband is owed the vacation pay: 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 this 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.

Your husband can collect any unpaid vacation pay via the DLSE, without charge. 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.

Now . . . it is suspicious that your husband was fired after such long employment. If he suspects age discrimination or another improper purpose, he should speak with an attorney ASAP. 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 May 7, 2016 5:12 PM [EST]

Answer to company that I was enployed for just finished buy out process. New ownership has eliminated my position and offerd me a different job which I have refused. I do have a letter from previous employer that states I've been terminated. Can I qualify for unemp

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.

The issue in your case wil be whether you are unemployed due to no fault of your own. It probably depends on what you mean when you say the job you were offered was "not suitable." If there was a substantial reduction in pay, the offered position was for a function far beneath your skills and ability, or some other reasons, then yo would not be required to accept it. The details of your previous position and the one offered make all the difference so no one here on MEL can answer your question with can specificity.

But it costs nothing to apply for unemployment benefits so why not do it and see? 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.

posted May 7, 2016 5:04 PM [EST]

Answer to I have been caring for my wife after cancer surgery. I was placed on unpaiid leave after my PFL ran out. The company has since reorganized and now wants to bring me back as a part time employee. Previously I was a fulltime salaried employee. Can they do t

First, I hope your wife's surgery was successful and her medical team was fully successful.

An employer has the legal right to reorganize as it wants UNLESS the "reorganization" is a mask for discrimination or another illegal motive. If the reorganization truly affected a large number or percentage of the employees – not just you or a few who the employer thought were trouble – it may be legit. Or it may be that the company had a legitimate reorganization and included you in it for an improprer reason.

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

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 because both laws protect an employee from discrimination based on association with a person with a disability. Please look at my guide to the ADA: http://www.thespencerlawfirm.com/tslf-ada.php and also on the differences between the ADA and California’s more generous FEHA: http://www.thespencerlawfirm.com/tslf-feha-vs-ada.php. The ADA applies to employers with at least 15 employees; the FEHA requires only 5 employees.

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, a child, a spouse or a parent, 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. Upon return to work, the employer is reqired to place the employee in the same or substantially similar position unless that position was eliminated for a legitimate reason or unless another legitimate reason exists.

Please look at my guide to 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.thespencerlawfirm.com/tslf-fmla.php. California’s CFRA is the same as the FMLA in all areas other than pregnancy disability and enforcement.

Your rights under both of these laws are independent of one another. That is, you may be entitled to protection from each of these laws at the same time.

The only way to know if you were illegally penalized is to analyze the detailed facts of the reorganization and your employment. 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. Many CELA attorneys represent clients throughout the state.

I hope there is a good resolution to this situation.

posted May 7, 2016 4:57 PM [EST]