Answers Posted By Marilynn Mika Spencer

Answer to I was forced to resign. I was presented a final paycheck at the time. It bounced and I was charged the fees on top of being issued a bad check. I live in California. If I was forced resign; when is my pay legally required to be provided?

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.

You can file a claim for your unpaid wages + the penalties + the interest with 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.

posted May 7, 2016 4:49 PM [EST]

Answer to Thirteen month ago I had been fire because one of my employees said I hit her and that wasn't true I could'it have unemployment I had been working with this company 8 years Can I do something about this Thanks

If you applied for unemployment benefits and received a denial letter, the denial letter included information on how to appeal the decision to the Unemployment Insurance Appeals Board (UIAB) and stated you had 30 days to file the appeal.

The UIAB will allow a claimant to file an appeal la little bit late if there was a good reason for the delay, such as serious illness. I am not aware of any reason the UIAB would allow an appeal to be filed over one year later. You can certainly try because it doesn't cost you anything, but I wouldn't get my hopes up.

Here is information on filing an appeal:

http://www.edd.ca.gov/unemployment/First_Level_Appeal.htm

posted Feb 14, 2016 1:15 PM [EST]

Answer to I most recently submitted my expenses as well as my consulting fees to my ex employer my ex employer responded back by telling me that it is company policy that I only have three months to submit any expense reimbursement and consulting fees, because my e

My answer assumes you were a California employee and not an independent contractor. Note that it doesn't make a difference if the employer and you agreed you were an independent contractor; whether you were or not is dependent on the law, not on the parties' agreement. Please see my guide detailing which workers are employees and which workers are independent contractors: http://www.thespencerlawfirm.com/tslf-ic-vs-ee.php.

Federal court resolved the issue of how long an employee has to claim expense reimbursement where an employer's policy states a shorter time than the law provides. An employee has three years from the date of termination to claim unreimbursed expenses because the right to reimbursement is based on statute (Labor Code section 2802), and the time limit to enforce a statute is three years. The employer cannot limit reimbursement to its three-month policy because that forces the employee to waive his or her right to expense reimbursement, and California law does not recognize such a waiver as enforceable. The employer must have either known about the expense or had reason to know about the expense. The case explaining this legal principle is Stuart v. RadioShack Corp. (N.D. Cal. 2009) 641 F.Supp.2d 901, and you can read a copy of it here: https://casetext.com/case/stuart-v-radioshack-corp. />
I don't know what you mean by "consulting fees." If these were wages, you can pursue a claim for these unpaid wages by:

(1) Filing a wage claim: 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. You will be able to collect unpaid wages for the past three years counting from the date you file. The advantages of this method is that there is no cost to you whatsoever and some employers are very responsive to a government claim. The disadvantages are that if you use your own attorney to assist you in this process, you are responsible for paying the attorney's fees; it can take a very long time to resolve the case because the DLSE is underfunded and understaffed; you "lose" the opportunity to collect the fourth year of unpaid wages; and the DLSE often puts pressure on the claimant to settle with the employer for less than the claim is worth.

(2) Retaining an attorney: An attorney can negotiate a resolution with your employer or, if that is not possible, can file a lawsuit in court to collect these unpaid wages. The attorney can pursue the past four years of unpaid wages, again counting from the date you file the lawsuit. The advantages of this method include that you can collect four years of unpaid wages; assuming you are successful in your lawsuit, the court must order the employer to pay your attorney's fees and costs; and the case can be resolved very quickly if the employer responds to your attorney's negotiation overture. The disadvantages are that if negotiation is not successful, it can take up to two years to resolve the case in court because the court is underfunded and many courtrooms are closed. Also, the court may not award the full amount of attorney's fees incurred and, depending on your legal services agreement with your attorney, some of the attorney's fees may be paid from your award; if the case is negotiated, it will certainly be settled for less than the full value because no employer settles for the same amount it would have to pay after litigation. Finally, court records are open to the public and any future prospective employer is able to learn about your suit against this employer, which may affect whether the prospective employer hires you.

(3) Filing a claim in Small Claims Court if the amount owed is less than $10,000. The advantage is that the process is faster than court litigation. The disadvantage is that you cannot have an attorney or any other representative. While the employer cannot have an attorney or representative either, it can assign a sophisticated employee representative who has been through the process many times, or who has been trained by an attorney, which may leave you disadvantaged.

If your claim is substantial, it is usually a good idea to retain an attorney and try to negotiate a settlement. You can pursue the most wages this way – four years – and receive the benefit of the attorney's experience. You can avoid a public record, potentially. And of course the other reasons mentioned.

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 independent contractors, the time limit to claim reimbursement is based on the terms of the contract between the hiring entity and the independent contractor.

posted Jan 24, 2016 12:41 PM [EST]

Answer to Family members of the accused - retaliation

An employer does not have responsibility for the family of one of its employees. Any recourse you have would be through civil court (civil harassment, assault, defamation -- whatever claim fits the actions of the father) or to file a criminal complaint, if that is appropriate.

posted Jan 24, 2016 11:47 AM [EST]

Answer to I was offered servant pay after 13 1/2 years working for Walmart will I still be able to collect from my un employment is it a good idea to sign the package

No one can tell you if it's a good idea to sign the package without knowing details of your employment. The severance agreement will contain a waiver of all claims, which means that if you sign it, you are agreeing to never sue the employer or to file an administrative claim against the employer, even if you later find out the employer did something against the law that harmed you. Most severance agreements also include a requirement that the employee keep all the terms completely confidential, and that the employee never apply to work for the employer or any of its related companies ever again. Also, these agreements usually require that the employee never say anything bad about the employer.

It is worrying that you are leaving this job after so many years. Anyone who knows about this is going to wonder why you're leaving. That's the first question that popped into my mind.

If you are absolutely certain that you were not treated in an illegal manner (no discrimination, unpaid wages, etc.) then it MIGHT be okay to sign it because you are not giving up any rights . . . BUT without reading the agreement WalMart wants you to sign, and without knowing what your employment circumstances are, no one can tell you if it's a good idea to sign or not. No one on this forum knows what you are giving up by signing, and we don't know how much money the employer is offering you in exchange.

Is the employer also agreeing not to say bad things about you? Probably not. What will happen when a potential employer contacts WalMart for a reference?

Does the agreement allow you to speak to your legal and tax advisors, and your spouse or immediate family? You certaibly need to speak to someone about taxes if there is substantial money involved. And how realistic is it for you to never, ever, say anything at all about the agreement to your wifre/husband/domestic partner/parents/whomever?

Plus, consider how difficult it will be to find another job after so long with this employer. Why did your employment end? Were you fired? Laid off? How will it look to a potential employer that you are out of work at this time? Does the agreement say that you resigned? That will be a red flag to a potential employer because in this economy, no one quits a job before they have another one, especially not after 13 years.

Also, if WalMart is offering you substantial money, why? No law requires it to do so. It is likely trying to buy your silence about something it doesn't want to get out, or maybe it knows it violated your legal rights and is trying to get out of the situation cheaply.

With respect to your question about unemployment benefits, it is illegal for an employer in California to require an employee to sign away (waive) rights to unemployment benefits or to workers' compensation.

There are so very many things to consider. The only way to get a meaningful answer to your question asking if it's a good idea to sign is to consult with an attorney about it. The attorney will need to know what claims you might have in order to know what you are giving up, and and the attorney needs to read all the terms of the agreement.

For this type of assistance, you can expect 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 three hours for this kind of consultation.

Also, understand that many terms in a severance agreement are negotiable. It is more likely an attorney can negotiate terms than that an employee can.

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 Jan 18, 2016 01:42 AM [EST]

Answer to can an employer ask you to click in and out on the exact hour?

Please see my response to your duplicate question here: http://www.myemploymentlawyer.com/questions/can-an-employer-ask-you-to-click-in-and-out-on-the-exact-hour.htm

posted Jan 17, 2016 11:25 PM [EST]

Answer to can an employer ask you to click in and out on the exact hour?

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 can change its rules and polices whenever it wants, and can change the terms of employment whenever it wants (except it cannot change an employee pay rates retroactively, only for future work). 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.

In your situation, if the employer insists everyone clock in and out at the exact time BUT there are multiple employees who need to use the same clock-in location (so that not everyone can possibly clock in or out at the exact time), you might want to ask the employer how it suggests the employees handle this. But even if the employer gives you no guidance or lattitude, it is acting within its legal rights.

It is not fair. It is not respectful. And you may want to start looking for another job where the employer is more realistic and more respectful. But in the meantime, employees are required to comply with an employer's directives, even if those directives are ridiculous.

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 Jan 17, 2016 11:24 PM [EST]

Answer to Can HR get involved if a co-worker threatens to have you fired out of work hours?

Employees have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. HR has no obligation to protect you in this circumstance or to investigate any allegation to determine if it is true or not, except with respect to certain issues such as such as whistleblowing or illegal harassment. Illegal harassment only refers to harassment on the basis of race, sex, religion, etc. HR's role is protect the employer, not the employees. 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.

The sad truth is that an employer employer can make decisions based on faulty or inaccurate information.

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.

It's difficult to know how to handle a co-worker accusation such as this. If you bring it to HR first or if the coworker brings it to HR first, HR might react in any number of ways. Maybe HR will decide you are more trouble than you are worth. Or perhaps HR will think the other employee is a problem. HR might think you are being defensive or trying to cover up for something. There is no way for someone from the outside, who doesn't know the company or any of the people involved, to predict this. And the coworker may never say anything to HR at all.

You will have to think about this employee and how serious you believe the person is. And . . . if what the coworker accuses you of saying is damaging to your reputation or to hers, or if it in any way involves illegal acts, sex, or embarrassing information, it could be trouble.

The coworker sounds immature, like a tattle tale. You might want to speak with a trusted friend who has good common sense, or someone with a lot more work experience, to try to get a better sense of things.

I hope this turns out okay.

posted Jan 17, 2016 03:31 AM [EST]

Answer to Would it be slander or liable to contact a former coworker's current manager?

If you are asking on behalf of your employer, certainly an employer of this size has its own attorneys who can advise in this situation. If you are asking on behalf of the former employee's new employer, it is hard to understand why it is your concern at all.

Regarding your question about slander or libel:

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.

While a truthful statement is not defamatory, there are related legal violations, such as "false light," that make certain truthful statements illegal. Your best bet is to stay out of this. If you choose to involve yourself, then you should retain an attorney to discuss the details.

posted Jan 16, 2016 11:18 PM [EST]

Answer to How would a lump sum from a settlement agreement affect your SDI, SSDI and SSI benefits?

The settlement agreement might include a provision that allows you to disclose terms of the agreement for any reason required by law. Regardless, you have a legal duty to report income under certain circumstances. The obligation might vary depending on the reason for the settlement agreement. Your safest bet is to consult with an attorney with whom you can discuss the details in confidence.

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 Jan 16, 2016 11:13 PM [EST]