Answers Posted By Marilynn Mika Spencer

Answer to can a skelly hearing be scheduled 2 days after receiving notice?

You should receive all information the public entity relied upon in reaching its proposed decision and enough time to work with that info and to request additional info if what you received was incomplete. Immediately put request for additional time (perhaps three weeks) in writing, being sure to sign and date the request. Keep a copy for yourself AT HOME, not at work. State you need time to review and prepare response and that denial of request is denial of due process. Good luck!

posted Jun 4, 2015 12:14 PM [EST]

Answer to Was sexually harassed by my boss for 2 yrs.... He no longer works for this company.. Can I still sue the company?

Under California law, you have one year from the date of the last incident to initiate a claim with the California Department of Fair Employment and Housing.

For more information about discrimination and harassment, and how to file a claim, please look at my article on discrimination under California law: http://www.thespencerlawfirm.com/tslf-discrimination-california.php. You may also want to read my article on sexual harassment: http://www.thespencerlawfirm.com/tslf-sex-harass.php

posted May 19, 2015 4:22 PM [EST]

Answer to laid for family emergencie boss told me told me to use my vaction days shortly laid for attandance

I'm not sure exactly what happened here; it looks like there were some typos. It appears that you were laid off for attendance reasons.

If you family emergency was due to a serious health condition that you had or an immediate family member had, you may have recourse under the Family and Medical Leave Act (FMLA). The Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) applies 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 a spouse, parent or child has, 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. Please look at my Avvo guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA): http://www.avvo.com/legal-guides/ugc/family-and-medical-leave-fmla-summary-of-key-provisions or http://i.oc.gs/rodat />
If there was a medical issue involving your own disability, you may have recourse under the ADA or the DFEH. Please look at my Avvo guide on the ADA: http://www.avvo.com/legal-guides/ugc/disability-discrimination-in-employment. Please look at my Avvo guide to the differences between the ADA and California's more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true.

If the emergency was not medically-related, then 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 Apr 22, 2015 12:51 PM [EST]

Answer to I was wrongfully terminated and my case was arbitrated by my union, and won. The company owes me 230k. Part of it was 2013, and 2014. $33000 was for pension money still owed for that period. I have already rolled over my pension to IRA and trying to reduc

I just remembered this is an employment-only forum. You may want to post your question on the tax forum on Avvo.com, which is fairly active.

a v v o dot com

posted Apr 22, 2015 12:19 PM [EST]

Answer to I was wrongfully terminated and my case was arbitrated by my union, and won. The company owes me 230k. Part of it was 2013, and 2014. $33000 was for pension money still owed for that period. I have already rolled over my pension to IRA and trying to reduc

Congratulations on winning your case and for having a union that went to bat for you!

You posted your question in the labor and employment forum, but I suggest you re-post in the tax forum. You may get more helpful responses there.

posted Apr 22, 2015 12:18 PM [EST]

Answer to I recently failed probation for the Ca State.i am on UI. On appeal,employer wants letter of resignation. Will this result in payback to UI?

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.

You appear concerned with item (1) above. If you can establish that the employer ended your job, then you should not have a problem getting your unemployment benefits. For example, if you have a letter, e-mail or other communication from the employer informing you of your termination, that should be sufficient. You will need to explain that the resignation later came after the employer had already terminated your employment.

BUT ... why does the employer want such a letter now, and why are you considering giving the employer the letter? You certainly have no obligation to submit a resignation letter after being fired. Sometimes employers and employees agree to change the employee's record to say the employee resigned or was laid off due to lack of work. This might be helpful to the employee in looking for another job. However, unless you have something to gain from providing a resignation letter after being fired, it doesn't appear there is any reason to give the employer what it is asking for.

posted Apr 19, 2015 01:14 AM [EST]

Answer to I was recently employed at a non profit organization that provide services for Family Domestic Violence. However I never received unpaid vacation time for 7 years. some flex time and at the end of my employment I was only give 33 hours of vacation time wh

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)

4. If an employer does not pay an employee whose employment has ended as required, then the employer is subjected to a penalty for late payment. The penalty is that the wages of the employee continue in full as if the employee were still working from the date of termination to the date paid in full, for a maximum of 30 days. (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 Apr 19, 2015 01:08 AM [EST]

Answer to I have several factors: I got injured on the job stepping out of office due to no lighting outside missed step and fractured ankle..Doctor put me on modified work but I have been off work on Disability due to severe depression due to the loss of my spouse

I am sorry to hear about your wife's death. I know this is a difficult time for you.

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

If the condition is due to a disability as defined by law, 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. Please look at my guide on the ADA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada and also on the differences between the ADA and California’s more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true. The ADA applies to employers with at least 15 employees; the FEHA requires only 5 employees. These laws protect you from discrimination (adverse treatment) DUE TO disability and also require the employer to provide reasonable accommodation (change in the manner in which work is done) so you can do the main parts of the job (essential functions). A leave of absence can be a proper reasonable accommodation.

There is limited protection if the illness or injury is caused by a serious medical condition as that is defined by law. 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.

Please look at my guide on 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.avvo.com/legal-guides/ugc/family-and-medical-leave-fmla-summary-of-key-provisions or http://i.oc.gs/rodat. California’s CFRA is the same as the FMLA in all areas other than pregnancy disability and enforcement.

Finally, if the condition is due to on-the-job injury, is caused by work or is made worse by work, California’s workers' compensation laws may provide some relief. You can find a workers' compensation attorney 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.”

Your rights under each 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.

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 Apr 19, 2015 01:07 AM [EST]

Answer to can I take legal action against my proir employer

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

If the condition is due to a disability as defined by law, 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. Please look at my guide on the ADA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada and also on the differences between the ADA and California’s more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true. The ADA applies to employers with at least 15 employees; the FEHA requires only 5 employees. These laws protect you from discrimination (adverse treatment) DUE TO disability and also require the employer to provide reasonable accommodation (change in the manner in which work is done) so you can do the main parts of the job (essential functions). A leave of absence can be a proper reasonable accommodation.

There is limited protection if the illness or injury is caused by a serious medical condition as that is defined by law. 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.

Please look at my guide on 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.avvo.com/legal-guides/ugc/family-and-medical-leave-fmla-summary-of-key-provisions or http://i.oc.gs/rodat. California’s CFRA is the same as the FMLA in all areas other than pregnancy disability and enforcement.

Finally, if the condition is due to on-the-job injury, is caused by work or is made worse by work, California’s workers' compensation laws may provide some relief. You can find a workers' compensation attorney 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.”

Your rights under each 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.

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 Apr 19, 2015 01:05 AM [EST]

Answer to can I take legal action against my proir employer

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

If the condition is due to a disability as defined by law, 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. Please look at my guide on the ADA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada and also on the differences between the ADA and California’s more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true. The ADA applies to employers with at least 15 employees; the FEHA requires only 5 employees. These laws protect you from discrimination (adverse treatment) DUE TO disability and also require the employer to provide reasonable accommodation (change in the manner in which work is done) so you can do the main parts of the job (essential functions). A leave of absence can be a proper reasonable accommodation.

There is limited protection if the illness or injury is caused by a serious medical condition as that is defined by law. 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.

Please look at my guide on 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.avvo.com/legal-guides/ugc/family-and-medical-leave-fmla-summary-of-key-provisions or http://i.oc.gs/rodat. California’s CFRA is the same as the FMLA in all areas other than pregnancy disability and enforcement.

Finally, if the condition is due to on-the-job injury, is caused by work or is made worse by work, California’s workers' compensation laws may provide some relief. You can find a workers' compensation attorney 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.”

Your rights under each 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.

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 Apr 19, 2015 01:05 AM [EST]