Marilynn Mika Spencer’s Answers

Marilynn Mika Spencer

San Diego Employment / Labor Attorney.

Contributor Level 20
  1. What are the laws about sexual harassment in California by the owner of a business

    Answered about 2 years ago.

    1. Michael Robert Kirschbaum
    2. Thomas Anthony Schaeffer
    3. Deborah Barron
    4. Neil Pedersen
    5. Marilynn Mika Spencer
    5 lawyer answers

    To add to Mr. Kirschbaum's and Ms. Barron's good advice: .......... There are practical considerations in addition to the legal issues. One difficulty in your situation is that the business owner is the one doing the unlawful harassment. He cannot be fired, transferred or disciplined for his actions, as he could if he were an employee. Another difficulty is that the restaurant is small. While I don't know what you mean by "small," it is possible that if you took the owner to court, the...

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  2. When a co-worker tries to kiss you and touches you is that 'sexual harassment'?

    Answered almost 3 years ago.

    1. Marilynn Mika Spencer
    2. Christine C McCall
    3. Michael Charles Doland
    3 lawyer answers

    Yes, it is illegal sexual harassment, as long as these advances were unwanted. Don't put up with this and don't remain silent. Tell the co-worker in clear, specific terms you do not welcome the advances. Put that statement in writing and give it to the co-worker. Keep a copy for yourself. Tell human resources or management what happened and give HR/management a copy of the letter you gave your coworker. If the employer does not make it stop immediately, you should speak with an...

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  3. MY TRANSFER FOR MY NEW POSITION HAS BEEN REVOKED AFTER I SIGNED MY OFFER LETTER

    Answered 6 months ago.

    1. Marilynn Mika Spencer
    2. Kevin H. Pate
    2 lawyer answers

    It is unlikely you can enforce the offer letter. Even if you could, it probably wouldn't help. Let me explain. The offer letter may have some waffle words in it, to the effect that you have the job as long as the employer finds it in its own best interest, or there is no guarantee, or something to that effect. Even if not, the employer is free to interpret "able to apply for a new position to transfer" however it wants, simply because it is interpreting its own policies. The employer can...

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  4. Limited scope representation or contingency attorney needed for employment case San Diego

    Answered over 2 years ago.

    1. Marilynn Mika Spencer
    2. Michael Robert Kirschbaum
    3. Michelle A. Perfili
    3 lawyer answers

    If you have a strong case, many or even most attorneys will represent you on a contingency basis. Plaintiffs attorneys understand that no ordinary person can pay by the hour for litigation. I cannot think of even one employment case any attorney in my office litigated on behalf of an employee that was handled on an hourly basis. This is particularly true in wage and hour cases because a plaintiff may obtain a separate award of attorney's fees to cover the expense of counsel. There is very...

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  5. Does getting fired for coming to work drunk violate disability laws if one is alcoholic?

    Answered almost 2 years ago.

    1. Kristine S Karila
    2. Marilynn Mika Spencer
    3. Neil Pedersen
    4. Arkady Igor Itkin
    4 lawyer answers

    Alcoholism is a disability under the ADA and the Fair Employment and Housing Act and it would be illegal to fire an employee BECAUSE the employee is an alcoholic. However, employees are still required to follow reasonable work rules: To paraphrase 42 U.S.C.A. § 12114: An employer may: prohibit the use of alcohol at the workplace by all employees; require that employees shall not be under the influence of alcohol; hold an employee who is an alcoholic to the same qualification standards for...

    10 lawyers agreed with this answer

  6. If I ask out my secretary is that sexual harassment?

    Answered about 2 years ago.

    1. Michael Robert Kirschbaum
    2. Michael Charles Doland
    3. Marilynn Mika Spencer
    4. Harry Edward Hudson Jr
    5. Afshin Mozaffari
    6. ···
    11 lawyer answers

    In addition to the other excellent responses and warnings you received, consider that despite what your secretary told you, she might feel coerced into telling you what she thinks you want to hear. You are in control of her very livelihood. You can cause her to lose her income, her home, her ability to support her family and her social standing. Do you really believe she feels absolutely free to tell you if she does not want a personal relationship with you? Especially if she knows you are...

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  7. Are employees entitled to have vacation, or employers have the discretion to provide or not provide vacation to them?

    Answered over 2 years ago.

    1. Michael Robert Kirschbaum
    2. Frank Wei-Hong Chen
    3. Mark Harrison Wagner
    4. Marilynn Mika Spencer
    5. Gian M. Fanelli
    6. ···
    6 lawyer answers

    I'm afraid you won't like the answer to your question. There is no law that requires an employer in the private sector to provide benefits to employees. Generally, an employer can decide whether to offer benefits, what benefits to offer, and to whom the employer offers them. There are restrictions that prevent an employer from limiting benefits to employees BECAUSE OF their race, religion, disability, sex, age (40 and over), national origin, pregnancy, genetic history, and in some states,...

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  8. I was hired as a independent contractor which i was not told, but was treated like regular employee. what should i do?

    Answered about 2 years ago.

    1. Marilynn Mika Spencer
    2. Neil Pedersen
    3. Nicholas Basil Spirtos
    3 lawyer answers

    You have some very serious legal issues involving tax law and employment law, including wage and hour law. Please do not try to handle this on your own. I cannot urge you strongly enough to consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation, and also a tax professional (attorney or CPA) who can coordinate with your employment attorney. Know that your employer may be on the hook in a number of ways, but that ultimately, you...

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  9. Is it a trade secret if I already knew of it before I began working for the company?

    Answered almost 2 years ago.

    1. Michael Robert Kirschbaum
    2. Craig Trent Byrnes
    3. Marilynn Mika Spencer
    4. Michelle A. Perfili
    4 lawyer answers

    This situation needs an assessment of the specific facts, including a review of the non-solicitation agreement you signed with your former employer. The Avvo board is not set up to handle the kind of detailed analysis needed to offer helpful guidance. Avvo works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone can read the discussions on Avvo so they are not confidential. The employer or whomever is involved in the dispute can read...

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  10. I received both "right to sue" employer letters from EEOC, want to know is there advantage to suing in federal vs state court?

    Answered over 2 years ago.

    1. Marilynn Mika Spencer
    2. Neil Pedersen
    3. Amir Mostafavi
    4. Arkady Igor Itkin
    4 lawyer answers

    Most plaintiffs employment attorneys would choose state court rather than federal court for a number of reasons. The most significant is probably that, in federal court, you must have a unanimous jury, which can be very difficult to obtain, whereas in state court you do not. Another extremely significant issue is which law you sue under. California's disability discrimination law is far superior to federal law in many respects, including definition of disability, remedies available, and...

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