Answers Posted By Marilynn Mika Spencer

Answer to Can I sue? I worked for USPS and quit to work for the corny I'm with right now. One of the reasons I chose to leave was bcz of the way my co-workers argued with the supervisors. They (both co-workers and) supervisors screamed loud and cursed at each other

Most workplace screaming and cursing is legal, no matter how obnoxious and annoying it is. It could be illegal if the language made reference to a protected category or derogatory terms for people in protected categories, or particularly targeted people in protected categories.

Employment in the U.S. Postal Service is covered by federal law. Under federal law, the protected categories I referred to above include race, color, religion, sex, sexual harassment, pregnancy, national origin, ancestry, mental or physical disability including HIV and AIDS, age (40 and above), equal pay, and genetic information. For these issues, you have only 90 days to take your first legal action. If you miss the deadline, you have missed any opportunity to sue. Please see my guide to the EEO complaint process for federal government employees and how to find the right attorney: http://www.thespencerlawfirm.com/pdf/tslf-federal-ee-discrim.pdf.

Other protected categories include blowing the whistle on a matter of public concern, such as theft from the government, health and safety violations, ripping off the public, and more. There are different time limits for these areas.

posted Nov 15, 2015 11:29 AM [EST]

Answer to I'm in California Can I discuss the character of one of my employees with my lawyer I am especially nervous about it because my lawyer has become close friends with my employee. I'm afraid that my lawyer and employee might try and hurt me in some way My l

Legally, you certainly can discuss your employees with you attorney and if you are in any way confidentially consulting your attorney as an attorney, discussing legal issues, or anything smelling like law, then your attorney is required by the California Rules of Professional Responsibility to retain your confidences, and to do so under all circumstances and no matter what. That said, some lawyers are better at honoring this obligation than are others. If you want to discuss something about your employee who is also a friend of this lawyer without having to worry about it, then you shouldn't speak with your lawyer.

A broader issue is your relationship with your attorney. If you have an attorney you cannot trust, then by all means get a different attorney. If you are afraid of you attorney for any reason, get a different one. If you think your attorney might hurt you, get a different attorney. You need to be able to speak freely with your lawyer – that's the whole basis for the attorney-client privilege. You need to be able to trust your attorney.

I don't understand how you ended up with an attorney you are afraid of, but this is no way to run a business and no way to live your life.

posted Nov 7, 2015 09:42 AM [EST]

Answer to Can an employee who is just picking up her check not in uniform and not on the time clock be confronted to talk to her boss on her own time, then have hours cut because the boss did not like the answer or way it went

There are two issues here. The first is that your employer has to pay you for all time it controls. If your discussion with the boss lasted more than 15 minutes, you might want to make a note of the date, time, and circumstances, and after you are no longer working with this employer, pursue a claim. Keep your note at home, not at work, because you never know what will disappear. You have three years from the date you should have been paid to file a claim with the Division of Labor Standards Enforcement for unpaid wages. 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.

Regarding the discipline itself: 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 Nov 2, 2015 12:59 PM [EST]

Answer to i asked my employer to excuse me for work for just one day because of health issues and they denied me so i decided to call out instead because i needed to see my doctor and i asked my doctor for an excuse note so i can give it to my employer and now my e

It depends on the size of your employer and the kind of medical condition you have. If any of the following applies to you, then you might want to post again for more info.

You may have legal protection if your employer has at least 5 employees and 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 your employer has at least 15 employees and 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. />
If your employer has at least 50 employees who work within 75 miles of one another, AND if you have worked for this employer for at least 1,250 hours in the immediately-preceding year, AND if you worked for this employer for a total of one year or more all together, you may have rights under 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.

Finally, if your health condition was caused by your work or was made worse by your work, you probably have a situation covered by California's workers' compensation laws. These laws prohibit an employer from taking adverse action against an employee because of an on-the-job injury.

Employment law is complicated and fact specific. If you believe any of the laws mentioned apply to you (other than workers' comp), 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.

If the workers' compensation situation applies, then you might already have a workers' compensation attorney. If so, talk to your attorney about a claim under Labor Code 132a, which prohibits adverse actions based on workers' compensation injuries. If you do not yet have a workers' compensation attorney, you can find one on the California Applicant Attorneys Association (CAAA) web site: https://www.caaa.org. CAAA is the strongest California bar association for attorneys who represent injured workers. On the home page, click on the picture of the wheelchair above the words "Injured Workers." On the next page, click on the link to “Attorney Search” on the left side. Enter your city or any other information and click “Search.”

I hope there is a good resolution to this situation.

posted Oct 30, 2015 11:33 AM [EST]

Answer to can employer deduct med ins payments twice in the same pay period?

It is not legal to deduct more than authorized. I'm sure you did not authorize double deductions. BUT if you agreed to pay a certain amount per month for insurance that covers you for the entire month, you might have authorized a total amount per month, to be deducted per paycheck – as opposed to deducted per pay period. We would have to read the deduction authorization you signed to be able to answer your first question.

And yes, your employer should have paid you at the time it terminated you. 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 Oct 28, 2015 6:22 PM [EST]

Answer to Can my small business owner make me sign a contract waiving my overtime all together? He is expecting me to work 10 hr shifts not payed time and a half for the extra 2 hrs worked of overtime. I live in california.

Absolutely not. It is a CRIME for your employer to do so. Labor Code section 206.5. states:

“(a) An employer shall not require the execution of a release of a claim or right on account of wages due, or to become due, or made as an advance on wages to be earned, unless payment of those wages has been made. A release required or executed in violation of the provisions of this section shall be null and void as between the employer and the employee. Violation of this section by the employer is a misdemeanor.

”(b) For purposes of this section, “execution of a release” includes requiring an employee, as a condition of being paid, to execute a statement of the hours he or she worked during a pay period which the employer knows to be false.“

You should know that if you protest your employer's illegal plan and your employer fires you or retaliates against you in any other way, that is also illegal.

Sounds like your employer plays fast and loose with the law. I hope you start looking for another job right away because this employer cannot possibly last for very long.

posted Oct 28, 2015 6:10 PM [EST]

Answer to Can I request to be back pay for the lost wages from Suspension for 3 weeks with no pay for investigation of theft of bridal bouquet which I was wrongly accused of and original accusation was never discussed or documented - it was dissolved and I I am fou

You can certainly ask, but the employer is not obligated to pay you unless it has a policy that it will pay employees who are suspended under these circumstances - and I doubt that there is such a policy. Employers must pay employees for all time worked, but as you were suspended and did not work during those three weeks, the employer is not required to pay you.

posted Oct 23, 2015 04:28 AM [EST]

Answer to I have been employed for over 3-1/2 years and now Wrongfully accused of theft . I was discriminated by being the only employee SUSPENDED INDEFINITELY FOR FURTHER INVESTIGATION with NO PAY of the DISAPPEARANCE OF THE BRIDAL BOUQUET. Total time of suspensio

Your post is somewhat confusing because we have no idea what you are referring to when you talk about a bridal bouquet. It sounds like you work in a place that arranges weddings or sells wedding supplies.

But no matter where you work, you and the other 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 Oct 23, 2015 04:25 AM [EST]

Answer to We are being outsourced to India. We were told about it back in August I think and received an email that we would be receiving the 60 day notice at the appropriate time and given an approximate end date of Dec 11. We are not over a week past the time we

The 60-day notice period is required by law. The federal Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101 et seq. (WARN or WARN Act) requires certain employers to give workers advance notice if they will lose their jobs through company or department closure, or mass layoffs. This is to provide the employees with time to seek other employment or retraining.

Sometimes, an employer provides this notice even when it has not yet decided there will be a layoff. This is because the employer wants to make sure it complies with the WARN Act because it faces steep penalties if it does not comply. Without reading the notice you received in August, I cannot even guess if it complied with the WARN Act requirements, which it may have done even though it said you would receive notice in the future.

At times, large layoffs or plant closing do not comply with the law. The first workers’ rights law organization to help employees in this situation was the Sugar Law Center, an affiliate of the National Lawyers Guild. The Sugar Law Center provides quality information and selected representation to employees facing a mass layoff or plant closing. You can contact the Sugar Law Center here: http://www.sugarlaw.org/get-help/. />
The U.S. Department of Labor has a Guide for Workers on the WARN Act. The Guide and contact information for Department of Labor officials are available at http://www.doleta.gov/layoff/warn.cfm. Another good summary is here: http://www.dol.gov/compliance/laws/comp-warn.htm.

posted Oct 23, 2015 04:23 AM [EST]

Answer to If I am demoted, will my accrued vacation hours be paid at the new lower pay rate?

This is an interesting question . . . and I don't know the answer to it. The statute, cases, and Division of Labor Standards Enforcement Opinion Letters address situations where vacation was earned at a lower rate than the final rate of pay. Your situation is the opposite.

Accrued, vested vacation is considered wages. The law is clear that wages cannot be forfeited. California Labor Code section 227.3 states:

"Unless otherwise provided by a collective-bargaining agreement, whenever a contract of employment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination. The Labor Commissioner or a designated representative, in the resolution of any dispute with regard to vested vacation time, shall apply the principles of equity and fairness."

Notice the clause in Labor Code section 227.3 that says "all vested vacation shall be paid to him as wages at his final rate . . . ." Payment at your final rate of pay indicates you would be cashed out at the lower (final) rate you were earning at the time of termination.

The statute also refers to vacation "time," which would indicate that what an employee accrues is not an amount of wages, but instead an amount of time. This also indicates the payment would be at the lower rate, because you would be cashing out hours of vacation time.

The statute quoted above is not the only place in the wage and hour laws that reference forfeiture. There are many references throughout the law that wages cannot be forfeited. This, plus the fact that vacation is considered wages, indicates the cash out would be at the higher rate.

Finally, in law, a specific statement controls, or supersedes, a general statement. Under this doctrine, the general policy disfavoring forfeitures would be superseded by the specific statement of "final rate" in Labor Code section 227.3.

Based on the above and 25+ years of legal experience, I anticipate the Division of Labor Standards Enforcement would say that section 227.3's language on the "final rate" would control, and you would be entitled to a cash out at the lower rate.

As I said, I do not know the answer. You can try calling one of the DLSE offices and ask to speak with an attorney, and ask the attorney. I don't know how easy it is to get through, but the DLSE attorneys are generally a good group and I expect you will get through or get a return call eventually.

Another thing you might consider is finding out from your employer what it intends to do in this situation. Do it via e-mail or some other written form so you will have a record. Explain you earned the vacation at the higher rate so you want to confirm that at the time you take vacation or receive a cash out, it will be at the rate you accrued the vacation. Add that it would be unfair to force you to lose it, especially because you are aware that California labor law disfavors forfeitures. See what the employer says.

Good luck!

posted Oct 23, 2015 04:18 AM [EST]