Answers Posted By Marilynn Mika Spencer

Answer to I accepted a negotiated severance settlement agreement through email, I have not received the settlement paperwork to sign, nor have I heard from the employer. Can they change or withdraw the offer if I accepted it through email?

One more thing: An attorney may be able to negotiate that the employer pay his or her fees instead of you. The employer would be required to pay reasonable attorney's fees if the case went to court and you prevailed, per law.

posted Oct 14, 2015 12:00 AM [EST]

Answer to I work as a technical contractor through an agency, for a financial institution. I have been given my two week notice and informed that October 2nd will be my last day. My contract agency indicates that they won't pay me my final check until the next pay

I am not aware of anything that allows a California employer to postpone the pay of an employee who it terminates. California law is quite firm on this. You may be entitled to additional compensation from the employer as a penalty against the employer, as I describe below.

The law requires an employer to pay out accrued vacation and PTO, but not sick leave, at the time of termination. Whether you are eligible for re-hire matters with respect to your employer, but not with respect to this aspect of the law.

Additionally, when you authorized the employer to deduct for medical benefits, I expect the authorization was for medical benefits you will receive. If your medical benefits stop on October 02, then the employer has no right to continue to deduct.

California law requires employers to pay employees according to a pre-determined schedule. FOR EMPLOYEES WHOSE EMPLOYMENT IS ENDING, Labor Code sections 201, 202 and 203 require the following:

1. If the employer ends the employment relationship, the employer must pay everything owed to the employee at the time of termination, including all accumulated wages, overtime, vacation and PTO. (Labor Code section 201)

2. However, for seasonal employees working in curing, canning, or drying perishable fruit, fish or vegetables, the employer has 72 hours to make full payment.

3. If the employee ends the employment relationship without notice, the employer has 72 hours to pay the employees in full, including all accumulated wages, overtime, vacation and PTO. (Labor Code section 202). The final wage 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. (Labor Code section 203).

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 Oct 13, 2015 11:58 PM [EST]

Answer to I accepted a negotiated severance settlement agreement through email, I have not received the settlement paperwork to sign, nor have I heard from the employer. Can they change or withdraw the offer if I accepted it through email?

It depends on how closely the e-mail communications mirror the requirements to form a contract. That means an attorney would have to review the specific language used by both sides to answer your question.

It is generally to your advantage to have an attorney review the entire situation – the facts of the sexual harassment, the response of management, and more – because it is unlikely an employer would voluntarily pay an employee the full value of the case without an attorney involved. In 25 years of practicing law in this area, I have never once seen that happen.

Also, if this does end up in a settlement agreement, the specific language used in any settlement agreement can be highly significant and can affect your future employment. An attorney can negotiate language that protects you instead of protected the company. Employers always tell employees that their settlement agreements are "standard" or "all the same," but that is never true. There is no such thing as a "standard" settlement agreement.

Finally, why are you leaving the company? Is that a condition of the severance? Losing one's job may be one of the most valuable aspects of any kind of settlement. I worry you have given too much to the employer.

posted Oct 13, 2015 11:51 PM [EST]

Answer to A co-worker gave me a paper that was in the fax machine thar stated all pay aspects of my salary. She gave me the paper,but I do not know how many people saw it. also, on the same day I was cleaning up an area ( work in a dialysis clinic) and found anothe

If the only information was about your pay, then that information is not confidential under the law. It may violate the employer's policy to be careless with pay information, but an employer's policy is not law.

In fact, California law makes it illegal for an employer to prohibit employees from communicating about their compensation. I know that isn't what happened in your case, but it is an indication that the legislature does not find compensation info to be confidential.

If the paper with your salary info also contained you SSN, then that was a violation because SSNs are confidential.

posted Oct 13, 2015 11:44 PM [EST]

Answer to My daughter gets less hours than other clerks with less seniority. Is this ok?

Possibly. If the reason your daughter is not getting more hours is because of her disability, then yes, it is illegal. If the reason the other clerk gets more hours is because she is a relative of the boss, or the boss thinks she's a better employee, then no, it isn't illegal.

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.

If you believe the disparity in hours assigned is due to your daughter's disability, then I suggest you speak with one or more experienced employment law attorneys with whom you can discuss the details of your situation. The devil is always in the details.

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.

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 Sep 5, 2015 7:48 PM [EST]

Answer to I have been offered a new job in WASHINGTON, I am currently in CALIFORNIA working remotely for 5 years to a company that has headquarters in MICHIGAN. I wanted to work for the new company in WASHINGTON but I have a non-compete agreement with my current em

Almost always, non-compete agreements are unenforceable in California. This means that the agreement cannot be enforced in court, but it does not automatically mean the agreement is automatically void.

Your situation is a bit complicated and is more likely to depend on the law of Washington than on California law. You should re-post your question in the Washington employment law forum.

posted Sep 5, 2015 7:45 PM [EST]

Answer to can an employer take money out of my paycheck because a credit card declined at the bank?

Absolutely not, unless you intentionally accepted a card that you knew would ultimately bounce. The courts and legislature understood that mistakes are inevitable, and the employer is in a better position to absorb the loss than is the employee. An employer cannot make the employee into an insurer of the employer’s business.

In Kerr’s Catering Service v. Department of Industrial Relations, 57 Cal. 2d 319 (1962), the California Supreme Court stated that “some cash shortages, breakage and loss of equipment are inevitable in almost any business operation. It does not seem unjust to require the employer to bear such losses as expenses of management when it is presently the unchallenged practice to require him to bear, as a business expense, the cost of tools and equipment, protective garments and uniforms furnished to the employee . . . . ”

“Furthermore, the employer may, and usually does, either pass these costs on to the consumer in the form of higher prices or lower his employees’ wages proportionately, thus distributing the losses among a wide group. In addition, the employer is free to discharge any employee whose carelessness causes the losses . . . .”

In addition, California Labor Code sections 2800 and 2802 require an employer to indemnify an employee for expenses and losses incurred on the job:

2800. An employer shall in all cases indemnify his employee for losses caused by the employer’s want of ordinary care.

2802. (a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.

Additionally, an employer is prohibited from making any deductions from an employee's paycheck unless the employee authorizes those deductions in writing, or the law requires the deductions.

However, an employer has the right to discipline an employee for mistakes on the job, all the way up to firing the employee. But the employer may NOT discipline an employee for complaining that the employer violated the wage and hour laws.

Even if your employer violated the law, there may be many reasons not to do anything about it just now. Taking action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about unlawful pay practices, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking unlawful retaliatory action in the first place. You may find yourself out of a job in this terrible economy and unable to find a replacement. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.

There is an alternative, though it involves waiting. California law requires an employer to pay an employee all accrued wages, vacation, PTO, and ascertainable commissions AT THE TIME the employer ends the employment relationship. If the employee quits without advance notice, the employer has 72 hours to make this payment.

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.

So when your employment with this employer ends you can pursue a wage claim or lawsuit if you are not paid everything as required, provided you are still within the time limit (see below).

You will need documentation to support your case. Keep your documentation at home, not at work, to make sure it remains private and doesn't disappear. For documentation:

Keep track of all the information related to this situation. Write down the details using names, dates, location, witnesses, times of day – as much as you can. Save copies of any documents.

When you are ready: 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 have THREE YEARS from the last day of work to file a Labor Commissioner claim for unpaid wages. However, there may be only one year to collect the 30 days' pay penalty, so file within one year of the date your employment ends.

If you pursue a lawsuit in state court, you have the potential to recover unpaid wages going back FOUR YEARS (instead of three) from the date you file suit, per Business & Professions Code sections 17200 et seq. But again, remember the one year deadline mentioned above.

Your best bet is always to consult one or more experienced employment law attorneys with whom you can discuss the details of your situation and go over your time limits. Please do not rely on general information from a public site such as Avvo.

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.

Marilynn Mika Spencer
San Diego

posted Sep 5, 2015 7:40 PM [EST]

Answer to Can my boss keep being rude to me and not being professional ?

Mr. Jaffee is correct. 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. 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.

Also, if your letter to the CEO discussed your boss' actions or attitude toward specific groups, as referred to above, then any increased harassment or adverse actions may be illegal retaliation.

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.

posted Sep 5, 2015 7:34 PM [EST]

Answer to Can a person still be eligible for UI in CA after terminated b/c random drug screen misunderstanding

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.

There is a legal presumption (similar to an assumption) that a claimant is entitled to benefits unless the claimant was either fired FOR MISCONDUCT or quit without cause. "Misconduct" generally means taking intentional acts against the interest of the employer. Some examples are tardiness or absences without reason, insubordination, showing up drunk, initiating a fight, etc. "Unsatisfactory performance" is NOT misconduct unless the claimant intentionally did a bad job. If the claimant did his or her best but the employer wasn’t satisfied, the claimant is still eligible for benefits. The burden is on the employer to show that the claimant intentionally did a bad job. For more information on misconduct, see http://www.edd.ca.gov/uibdg/Misconduct_-_Table_of_Contents.htm. />
The California Employment Development Department (EDD) administers California’s unemployment insurance program and evaluates claims for benefits. Often, EDD telephones the claimant and the employer and interviews both. EDD compares their statements and makes a decision based on information received. By the limited nature of the initial process, EDD sometimes makes errors. For this reason, there is an appeal process.

Your claim may be denied, but you can and should appeal the denial. The Notice of Determination stating your claim was denied for misconduct includes information about the appeal. You MUST file your appeal by the date stated in that letter. Do not miss the deadline. In the appeal, make a brief statement saying why you believe the denial was incorrect. Save your detailed argument and evidence for the hearing. For example: “I did not intentionally disobey a rule or directive. There was a genuine misunderstanding."

In a few weeks, you will receive notice of an appeals hearing with the date, time and location. At the hearing, be prepared with as much evidence as possible. You should also know the law the administrative law judge will consider. You can get a lot of helpful information on the EDD website.

Home page
http://www.edd.ca.gov/Unemployment/
Eligibility requirements
http://www.edd.ca.gov/unemployment/Eligibility.htm
Summaries of the law (Benefit Determination Guide)
http://www.edd.ca.gov/UIBDG/
Appeals
http://www.edd.ca.gov/Unemployment/FAQ_-_Appeals.htm
Precedent Decisions (law the administrative law judges rely on)
http://www.cuiab.ca.gov/precedent_decisions.shtm
Frequently asked questions
http://www.edd.ca.gov/unemployment/FAQs.htm
Filing a claim for unemployment benefits
http://www.edd.ca.gov/unemployment/Filing_a_Claim.htm

You can be represented by anyone at the hearing. If your appeal will be difficult or you are uncomfortable speaking, you may wish to retain an attorney to help you prepare or to represent you. For training, expect the attorney to need approximately three hours. For hearing representation, expect the attorney to need three to seven hours to prepare, depending on the complexity of the case, witnesses, documents and other evidence, and allow two hours for the hearing itself. Unemployment hearings usually last one hour or less, but you must arrive early to look at the file and there is a possibility you will have to wait for the previous case to finish.

Generally, as of 2015, plaintiffs employment attorneys in California charge between $250 and $700 per hour for legal services. The amount varies based on experience, location, attorney availability, attorney interest in the case, complexity of the matter, and more. To find a plaintiffs employment attorney in California, visit the California Employment Lawyers Association (CELA) at www.cela.org. CELA is the largest and most influential bar association in the state for attorneys representing working people. You can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.

Marilynn Mika Spencer
San Diego, CA

posted Aug 23, 2015 9:07 PM [EST]

Answer to Has the statute of limitations run out?

There are many different statutes of limitation in law, depending on what the legal claim is.

If you are asking whether it's too late to pursue a constructive discharge claim (simply stated, constructive discharge is where an employer forces an employee to resign due to intolerable working conditions), then yes, you are too late because the statute of limitation is two years.

If you are asking about unpaid overtime or other wages, the statute of limitation is three years if the claim is filed in court or with the Division of Labor Standards Enforcement (Labor Commissioner), but if the wage claim is encompassed within a claim for violation of Business and Professions Code section 17200 (unfair competition), there is a four year statute of limitation to file in court. If the wage claim is based on a written agreemnt, the statute of limitation is four years.

If you are claiming personal injury, that claim is probably preempted by workers' compensation law. I do not practice workers' compensation law so you must check with a workers' compensation attorney to know for sure, but my understanding is that an employee must file a workers' compensation claim within one year of the date of injury AND before the employment ends, unless the employer is on notice of the injury or there has been medical treatment. Again, be sure to check with a workers' compensation attorney about this because I could be wrong.

If you have a personal injury claim – which is unlikely under the facts as you described them – the statute of limitation is two years, so you are too late.

If I've missed the claim you are thinking about, post again and perhaps we can answer.

posted Aug 1, 2015 7:45 PM [EST]