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Marilynn Mika Spencer

Marilynn Mika Spencer’s Answers

6,888 total


  • What is the minimum hours you have to be scheduled in one work day in the state of california?

    I work at walmart and am having troubles with them. They didnt except my doctors note and wrote me up for the time i was out. I talked to them and told them i didnt think it was fair because they never told me i had to call out each day and i told...

    Marilynn Mika’s Answer

    There is no law in California about scheduling minimum hours, and I agree with Mr. Campbell on this point. I also agree you should consider whether pregnancy discrimination played a part in the scheduling.

    Pregnancy discrimination is unlawful under California and federal law.

    FEDERAL RIGHTS: In 1978, Congress amended the Civil Rights Act of 1964, Title VII 42 U.S.C. §§ 2000e to 2000e–17, by passing the Pregnancy Discrimination Act.

    Under the Pregnancy Discrimination Act, "discrimination" means to treat a pregnant employee differently from non-pregnant employees, and adversely. The employee must be able to make a connection between the discriminatory treatment and the protected status (being pregnant). In other words, the employee will have to show that her pregnancy is reason the employer is treating her adversely. There are various ways to do this. Negative comments from supervisors or management; a sudden change in treatment (for the worse) as soon as or shortly after the employer learns about the pregnancy or the effects of pregnancy; or other incriminating conduct. Note it is not unlawful for an employer to apply the same leave of absence policy to pregnant and non-pregnant employees.

    For information on pregnancy discrimination, see:
    http://eeoc.gov/laws/types/pregnancy.cfm

    For information on the Pregnancy Discrimination Act, see:
    http://eeoc.gov/laws/statutes/pregnancy.cfm

    This law is enforced by the Equal Employment Opportunity Commission (EEOC). www.EEOC.gov

    Under federal law, leave taken for an employee's incapacity due to pregnancy, childbirth or related medical conditions is governed by the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA), just like leave for any other “serious health condition” of an employee. See my Avvo guide to the FMLA for more information: http://www.avvo.com/legal-guides/ugc/family-and-medical-leave-fmla-summary-of-key-provisions or http://i.oc.gs/rodat

    CALIFORNIA RIGHTS: California employers must comply with federal law, as above, and also must comply with state law. The California pregnancy disability leave law, Government Code section 12945(a) (PDLL), is part of the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA). The PDLL requires employers to provide employees up to four months of unpaid leave for disability caused by pregnancy, childbirth or a related medical conditions.

    Under some circumstances, an employer may be required to transfer an employee affected by pregnancy, childbirth or related medical conditions to a different job.

    California has its own family and medical leave law, the California Family Rights Act, Government Code section 12945.2 (CFRA). It is substantially similar to the FMLA, but an employee's incapacity due to pregnancy, childbirth or related medical condition is not included in the definition of “serious health condition.” This is usually beneficial to the employee because CFRA leave and pregnancy disability leave are two separate and distinct rights under California law. They do NOT run concurrently, as they do under the FMLA. Instead, an employee in California may take four months of PDLL plus 12 weeks of family leave, provided of course that the employee meets the other conditions of these laws.

    Please look at my guides to unlawful discrimination under California law: http://www.thespencerlawfirm.com/tslf-discrimination-california.php and under federal law: http://www.thespencerlawfirm.com/tslf-discrimination-federal.php. These guides should help you understand lawful and unlawful discrimination, how to pursue a claim, and time limits.\

    (continued in Comment below)

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  • Do I have a case where I was wrongfully terminated and then told to lie about it and say I was laid off and I have proof?

    I worked at a company for two years made one mistake and only had one write up before hand was fired for it and then told to say I was laid off so I could collect unemployment, but I believe the real reason was my type one diabetes and medical abs...

    Marilynn Mika’s Answer

    It doesn't matter if you were fired or "laid off" with respect to unemployment benefits. The words are often used interchangeably. What California Employment Development Department (EDD) looks for is who ended the employment relationship – the employee or the employer. If the employee ended the employment without good cause, as EDD defines it, then the employee is denied benefits. If the employer ended the relationship, the employee is entitled to benefits unless the employee engaged in misconduct, as EDD defines that term.

    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.

    If you believe you were terminated because of your disability, I suggest you speak with one or more experienced employment law attorneys with whom you can discuss the details of your situation. You will need something more than a belief. There must be something that connects your disability to the employer's action. This could be timing, such as you made your mistake in January, the employer learned about your disability in July, and you let go right after the employer learned about the disability. Or comments the employer made, or other people who do not have disabilities were not let go under the same circumstances, etc.

    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.

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  • Do I give my employer an extension or file a formal EEO complaint? My EEO counselor has until 7/17 to do something.

    I filed EEO for discrimination on sex and race due to sexual harassment from a carrier supervisor. The supervisor shoved a box of pizza in the back of my head, followed me to the women's restroom on my side of building, bribed me with money etc. S...

    Marilynn Mika’s Answer

    It sounds like you work for the Postal Service. There are many considerations in selecting a strategy for a discrimination case, and that kind of discussion cannot be held on a pubic web site such as Avvo.

    I have a concern. You said you filed for race and sex harassment, but nothing you put in your post indicates anything at all about race-based or sex-based harassment. The EEO will dismiss your case unless you raise facts related to the discrimination you allege. It sounds like your case may be better handled through the union grievance process. Have you spoken to your union about this?

    If there are facts that indicate your race or sex played a role in the supervisor's actions, then of course EEO is the place to go. The process for pursuing a discrimination complaint against the federal government is complicated and counter-intuitive. Because of its special characteristics, I have written a guide to help federal employees navigate the system. 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.

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  • Should i tell my supervisor about california's overtime law?

    I'm a software configurations engineer located in irvine,ca. However my company's headquarter is in the Midwest. According to online resources such as this one. http://www.employers.org/membership/california-human-resources Most people at our Ir...

    Marilynn Mika’s Answer

    What you do depends on how long you want to work for this company and how well you can predict what its reaction will be. Of course any company doing business in California is required to follow California laws.

    Even if your employer violated the law, there may be many reasons not to do anything about it just now. Bringing this up without careful planning 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 or initiates discussion about unlawful pay practices, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking 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.

    For every work day, keep a log of all your work time, including the time you start working, the time you stop working, and the start and stop times of any breaks (meal or rest). Time spent walking to or from a time clock is considered work time, not break time. Many people find it helpful to keep this information on a calendar.

    For every work day, keep track of the actual work duties you perform and how much time you spend on each duty.

    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.

    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.

    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.

    (continued in Comment below)

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  • My boss changed my schedule and didn't tell me and I got in trouble for it.

    My boss changed my schedule Friday, effective that coming Monday. I was originally scheduled to be off, but he changed me to come in at 2pm instead. The problem is, not only did he change my schedule without my consent, but I was never told of thi...

    Marilynn Mika’s Answer

    Your question is completely reasonable, as is your thought that you should be notified of any change in your work hours. What this means is that you are more reasonable than the law, because the law doesn't prohibit an employer from being very bad at running a business. 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.

    If your employer has a human resources department, you might consider raising this issue with HR and suggesting the company establish a policy to notify employees in advance of changes in work hours. Your approach should be that you want to help the company run more efficiently. If things go well, you may be able to get the discipline reversed.

    Whatever you do, don't challenge the employer’s authority. Indicate you want to continue your working relationship and value your job. Explain you care about doing a good job. Mention your good work record if you have one. Explain you would never intentionally do anything against the company's or your boss' interest.

    Do not blame anyone else even if you believe someone deserves it; this cannot help you. Only talk about yourself, that you want to do a good job, you would like to suggest a policy change to help employees like you do better for the company. Be polite and respectful. Don't give anyone a reason to get angry.

    I know it's annoying to have to do this when you didn't do anything wrong, but remember, an employer doesn't need a reason to fire you or discipline you.

    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.

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  • If I work at a job in a union enviorment can I be fired with no union rep present?

    I was fired from a state job with Rowan university without the shop stewart or ny other union person present.

    Marilynn Mika’s Answer

    I agree with Alice Baker. I believe Rowan Univ. is a public university, so yor state's labor relations laws will control this issue. But most state labor relations laws follow the federal labor law that applies to privae sctor unions, the National Labor Relations Act. Under the NLRA, union employees have something called Weingarten rights (the name comes from a case involving an employee named Weingarten). https://en.wikipedia.org/wiki/Weingarten_Rights Weingarten rights give union employees the right to union representation at an investigatory meeting . . . one that can lead to future discipline (and the employee must request a union rep). However, if the meeting is to notify the employees of discipline the employer already decided to issue, no union rep is required by the Weingarten ruling. HOWEVER, your state law may require this, or your union contract may require this. The best thing to do is to contact your union immediately! No one knows your union rights better than your union – certainly not a bunch of attorneys on Avvo who have never seen your contract and don't know any details.

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  • Can a county employer make a pay rate error for 3 years and hide behind a union's MOU to avoid repayment?

    I was called in by my HR yesterday. After tears in her eyes and a quivering voice and her saying I was really going to be upset, she admitted that I had an error in pay for the last 3 years @ $200/month. She apologized profusely, but then told me ...

    Marilynn Mika’s Answer

    I am sorry to tell you that it is possible the HR rep was giving you the correct information. When there is a MOU/contract between a union and an employer, the MOU governs all issues related to wages, hours, and terms of employment. But a few things may still help you:

    (1) Have you spoken with your union about this? There may be a way around the MOU language.
    (2) The contract language might not apply to your situation because the employer would be correcting an error, not intentionally violating the contract.
    (3) While the employer is obligated to follow the MOU language, the employer and the union can agree to waive the contract to remedy a particular problem. In your situation, the union may be quite willing to do this because your pay issue probably only affects you . The employer is not as likely to be willing to pay more than it has to, but you and/or the union can certainly embarrass the employer to put pressure on it to do the right thing.

    Without knowing more, I anticipate the (2) is the best path for you.

    Good luck.

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  • Federal employment discrimination question

    was taken off a bid tour that was open to everyone. I am on limited duty because I was injured. I bid for this tour of duty. I was taken off this duty and place somewhere else. I was told because I wasn't able to perform one of the function. I wou...

    Marilynn Mika’s Answer

    If you are a civilian employee of the US government, and by "tour of duty" you are referring to temporary assignment, you will need to have a detailed discussion with an employment attorney who is experienced representing federal government employees in disability discrimination and reasonable accommodation cases. The vacancy posting is not the only factor to consider. Also relevant are the actual essential job duties, when those were identified, your medical status including your specific restrictions, and more.

    The process for pursuing a discrimination complaint against the federal government is complicated and counter-intuitive. Because of its special characteristics, I have written a guide to help federal employees navigate the system and find an attorney. Please see my Avvo guide to the EEO complaint process for federal government employees: http://www.avvo.com/legal-guides/ugc/summary-of-federal-employees-eeo-discrimination-complaint-process?published=true.

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  • Pregnant and feeling harassed by a co worker

    couple months pregnant, and a male employee has asked two other employees if they got me pregnant, employees who he knew made me uncomfortable (they had crushes on me and one acted very stalker like towards me) another employee also helped me once...

    Marilynn Mika’s Answer

    Unlawful harassment is a form of discrimination. To be unlawful, the harassment must be must be based on a protected category, such as race, sex, religion, disability, age (40 and over), pregnancy, or genetic information. Harassment is also illegal if it is based on whistleblower status, taking or needing family leave, or some other protected category. An employer is required to provide a workplace free of unlawful harassment.

    Harassment can include verbal conduct, slurs, derogatory comments, comments or questions about a person's body, appearance, religious, or sexual activity, or indication of stereotyping. Harassment can also include offensive gestures, sexually suggestive eye contact or looks, mimicking the employee in an insulting way, and derogatory or graphic posters, cartoons or drawings.

    Harassment is unlawful when the conduct is either severe or pervasive enough to create an abusive environment. Severe conduct would include most physical contact and many types of threatening, vulgar or degrading conduct. Pervasive conduct is widespread, happens frequently and/or in many situations. One offensive statement is not pervasive, but the same comment made over and over again may be pervasive.

    Please look at my guide to unlawful discrimination: http://www.thespencerlawfirm.com/tslf-discrimination-california.php which should help you understand lawful and unlawful discrimination, how to enforce your rights, and time limits.

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  • I work in a lab that don't provide protection from chemicals with carcinogen, have complained to my boss about the problem.

    Management refuse to provide face mask or respirators for employees protection, and I'm the only employee who is requesting protection from these dangers cancer causing chemicals. We have batch records requesting us to don face mask, but instead m...

    Marilynn Mika’s Answer

    While I completely agree that this dangerous situation should be reported to OSHA, since you are the only employee asking for protective gear, the employer will most likely suspect that you are the source of the complaint. It is illegal to retaliate against an employee who makes a good-faith report to OSHA, but the law only provides a remedy after the fact. You may find yourself out of work in this weak economy.

    I am not in the slightest suggesting you do nothing and risk your health. Instead, I suggest you be careful and thoughtful about how you proceed. Keep a log of any comments, adverse actions or other funny business, starting with the day the first inappropriate comment or adverse action took place. Write down the date, time, what was said or done, who said or did it, and any witnesses. Be sure to include any complaints you made to HR, your boss or anyone. Keep your log at home, not at work, because you never know what will disappear.

    The best logs describe facts, not opinions. For example, this is a good log entry because it describes facts: 02/14/2014 2:30 p.m. Margaret Vader said to Enrique Lopez "See that guy over there? He's a @#$." I was standing less than five feet away when she said this. Also within earshot were Alice Anderson, Benay Banquette, and Candice Crzmik.

    This is not a good log entry because it describes opinions and supposition: 02/14/2014 2:30 p.m. Margaret tried to piss me off because she's a bigot and she hates me. She told Enrique I'm a @#$. Lots of other people heard it too.

    Your log will be a record of potentially powerful evidence of retaliation.

    Better still, I suggest you speak with one or more experienced employment law attorneys with whom you can discuss the details of your situation. You may be able to develop a strategy that will result in both safety protection and job protection. 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.

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