Skip to main content
Marilynn Mika Spencer

Marilynn Mika Spencer’s Answers

6,850 total


  • I have a 4 days 10 hour work schedule adding to 40 hours a week. If I work a 5th day, do I get overtime?

    My work schedule is Monday-Thurs. I work 10 hours each day for 4 days. If I were to work on Fri, Sat, or Sun, am I entitled to overtime hours? For example, on my last pay period I worked 50 hours. I worked Monday-Friday. 10 hours each day. I wa...

    Marilynn Mika’s Answer

    Under California law, you are entitled to overtime for all time worked above 40 hours in one week, regardless of having a 4/10 alternative work schedule. A 4/10 schedule only address the California law that requires employees to be paid overtime for all time worked beyond 8 hours in one day. As mentioned in the other responses, the employees must vote for this alternative workweek before it is valid.

    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 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.

    (continued in Comment below)

    See question 
  • Should I file for labor law violations against my employer for failing to pay me overtime?

    I just recently learned about how a "Work Week" works (Sorry about that). I receive my earnings bi weekly every other Friday but there have been occasions where during a "Work Week" I have worked over 40 hours (Quite a bit). Now after closely exam...

    Marilynn Mika’s Answer

    • Selected as best answer

    No one can answer whether it makes more sense to speak with your employer first, or to file a wage claim . . . or to wait (see below). We don't know your place of employment or how nasty or nice the employer is. But one thing to consider is that even though your employer is in a different state (per your comment to Mr. Kent), your employer should have known to pay overtime after 40 hours of work in one week; that is what federal law requires. In other words, your employer being out of state is no excuse.

    Here is the law about when employees in California should be paid:

    California law requires employers to pay employees according to a pre-determined schedule.

    FOR CURRENT EMPLOYEES, Labor Code section 204 requires all of the following:

    1. Employers must establish regular pay dates and provide notice of these dates to all employees.

    2. Employers must pay employees at least twice per month.

    3. For work performed between the 1st and 15th of the month, the employer must pay employees between the 16th and 26th days of the same month.

    4. For work performed between the 16th of the month and the last day of the month, the employer must pay employees between the 1st and 10th of the following month.

    5. Some executive, administrative and professional employees may be paid only once per month, on or before the 26th of each month; this must include pay for work that will be performed between the 26th and the end of the month.

    6. Employees who are paid weekly, biweekly or semimonthly must be paid within seven calendar days of the close of the payroll period.

    7. Scheduled overtime must be paid per the requirements listed above. Unscheduled overtime must be paid no later than the following pay date.

    Some types of pay have different pay requirements. For example, per the Division of Labor Standards Enforcement (DLSE) Enforcement Manual section 5.2.4:

    1. Commissions must be paid when they are reasonably calculable.

    2. Bonuses must be paid on the first regular pay date following the date upon which the bonus is calculated. For example, a quarterly bonus must be paid on the first pay date after the end of the quarter.

    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.

    Now, with respect to strategy for the non-payment: 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

    (continued in Comment below)

    See question 
  • California - paystubs

    My employer was handwriting checks for 2.5 months. I asked the employer to give me paystubs for the checks. He said he would, but has not done so in 1 month. Then he started using a payroll service, and but when I ask for the paystubs he says th...

    Marilynn Mika’s Answer

    An employer is required to provide employees with a detachable wage statement (pay stub) for each pay period. By law, the pay stub must be in ink and must be accurate. It must show the:

    1. Gross wages earned;

    2. Total hours worked;

    3. All applicable hourly rates in effect during the pay period and how many hours worked at each rate;

    4. Number of piece-rate units earned and at what rate (if applicable);

    5. All deductions;

    6. Net wages earned;

    7. Inclusive dates for which the employee is paid;

    8. Employee’s name and only the last four digits of the employee’s social security number or employee identification number; and

    9. Name and address of the employer.

    If the pay stub is not provided, is missing any of the above information or is inaccurate, the employer is subject to a penalty of $50 for the first violation and $100 for each additional violation, up to a maximum of $4,000. This penalty is paid to the employee, along with any attorney’s fees and costs necessary in pursuing the claim.

    I understand your concern about the employer retaliating against you. Unfortunately, there is no way to prevent an employer from breaking the law; the most the law can do is provide a remedy after the fact.

    You might consider preparing a petition or letter to the employer requesting the pay stubs, and getting as many other employees to sign as possible. You can agree not to turn the petition/letter in to the boss unless at least 10 employees or some other number, or a certain percentage of the workforce, signs. That way, if the employer wants to retaliate, it will be harder because os many employees complained.

    It is also possible the employer will just go after you, after identifying you as the instigator. If so, you are back to the hard choice between staying quiet and going without pay stubs, or going forward and risking trouble. To try to reduce the likelihood the employer will retaliate against you, you can tell the employer in writing that you are aware it is illegal to retaliate against an employee who complains in this way: It is against the law to retaliate against an employee who protests or questions unlawful pay practices. Labor Code section 98.6; Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137. Also, Labor Code § 1199 provides that it is a crime (misdemeanor) to violate this area of the law.

    In addition: In 2008, the Governor signed into law a measure making it a misdemeanor for an employer to require an employee to sign a timesheet containing false statements of actual hours worked as a condition of being paid. (Labor Code § 206.5).

    But again, you are faced with the same hard choice. 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 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.

    (continued in Comment below)

    See question 
  • Can my boss change my hours without permission?

    I usually print out my shift reports right when i get off. I have two copies of one shift: one printed when i clocked out, one printed two weeks later (i printed that shift twice thinking i might not have printed yet the first time). The one print...

    Marilynn Mika’s Answer

    It is illegal for an employer to falsify an employee's pay or work records. You are wise to keep your own records, just to counter this kind of impropriety.

    Yes, one falsified record is enough to pursue a claim against the employer, but it probably isn't a good idea to take action on one event . 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 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. Your print outs will be excellent records.

    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.

    (continued in Comment below)

    See question 
  • California FMLA. Can a company dictate which leave your need to be approved for?

    I applied and was approved for 28 days per month intermitted leave for CAl FMLA. The company has come back on a few occasions and said if I am out 10 consecutive days I need to file a continuous FMLA claim, then changed it to 5 days and now tha...

    Marilynn Mika’s Answer

    The FMLA does not require an employee to file a "contiguous" FMLA if the employee is out 10 days in a row. Your employer may have such a policy, but it is not legally enforceable because an employer cannot require an employee to follow stricter rules than the FMLA provides. Here is the law on intermittent leave:

    An eligible employee is entitled to leave up to a total of 12 weeks “Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. section 2612(a)(1)(D).

“FMLA leave may be taken ”intermittently or on a reduced leave schedule“ under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason.” 29 C.F.R. section 825.202(a); 29 U.S.C. section 2612(b)(1).

    The Code of Federal Regulations provides this example: 

“(1) Intermittent leave may be taken for a serious health condition of a parent, son, or daughter, for the employee’s own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.” 29 C.F.R. section 825.202(b)(1).

    This same section also states that intermittent leave “shall not result in a reduction in the total amount of leave to which the employee is entitled under subsection (a) of this section beyond the amount of leave actually taken.” 29 C.F.R. section 825.205(b)(1); 29 U.S.C. section 2612(b)(1).

    What the section above means is that the employee is entitled to 12 weeks of leave [per subsection (a)] and can only be charged with FMLA leave for the exact amount of time the employee is out on leave. For example, if the employee’s physician certifies the employee needs intermittent leave from January 01 to February 28, and the employee takes leave for 6 hours on January 14th, 8 hours on January 23rd, 3 hours on February 03 and 8 hours on February 20, the employer can only subtract 25 hours [6 + 8 + 3 + 8 = 25] from the employee’s 12-week leave entitlement. The employer cannot subtract the 59 total days from January 01 to February 28. 

The FMLA specifically states that certification is sufficient if it provides:
    
(1) the date the serious health condition began;
    
(2) the probable duration of the condition [which could be lifelong or permanent];
    
(3) the required medical facts [note this does NOT require a diagnosis];
    4) a statement the employee is unable to perform the functions of the position of the employee [due to the serious medical condition]; and
    
(5) “a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule, and the expected duration of the intermittent leave or reduced leave schedule.” 29 U.S.C. section 2612(b)(6).

    (continued in Comment below)

    See question 
  • I got a letter from EDD stating that I owed them almost $10,000 in overpayments from benefits I received 14 years ago.

    I called and they told me that it was just overpayments and i needed to pay it back regardless of whether i had the means to do so. Now, I filed my taxes and they took my entire refund which my daughter and I need to live on. What can I do?

    Marilynn Mika’s Answer

    I cannot comment on the bankruptcy issue but you may be able to do something about the EDD overpayment. If you received the letter recently, you should file an appeal.

    The Notice of Determination telling you about the overpayment contains information about the appeal. You MUST file your appeal within the time limits stated on the letter, or have a very good reason for any delay. 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: the decision that I owe money to EDD is incorrect.

    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

    See question 
  • Is there such a thing of suing EDD?

    My last employment was on May 2014 I file unemployment was getting my earnings but EDD stop my funds because supposedly still working at a staff agency which I did call notifying them unable to work the next day assignment and now I owe EDD almos...

    Marilynn Mika’s Answer

    Mr. Kirschbaum is absolutely correct. Your first step would be to file an appeal of EDD's decision.

    The Notice of Determination telling you that you owe money includes information about the appeal. You MUST file your appeal within the time limit stated in that letter. Do not miss the deadline. In the appeal, make a brief statement saying why you believe the decision was incorrect. Save your detailed argument and evidence for the hearing. For example: I was not working at the time EDD thought I was working.

    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

    See question 
  • Can I get laid off during time off due to my disability?

    I rolled my ankle and required surgery and just yesterday my boss called saying he wanted me to "look for a job elsewhere" he told me that his business is slow and been cut back but from what I heard from co workers was that he had hired 2 new guy...

    Marilynn Mika’s Answer

    If your employer is laying you off BECAUSE OF your disability, then no, it is not legal. 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 (ADA) and the California Fair Employment and Housing Act (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).

    Note that a leave of absence can be a proper reasonable accommodation.

    In addition, 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 (FMLA) and the California Family Rights Act (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 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.

    See question 
  • After working for Bayer Corp.for six years and been denied long term disability for the past 12 yrs. Can I still sue & for

    What happened was 14 years ago I went out on disability .Bayer denied me long term disabilty benefits. I got a lawyer for social sec disabity benefits & won. The same lawyer represented for Bayer. But my attorney turned against me and wanted me s...

    Marilynn Mika’s Answer

    I am sorry to hear about all these difficulties. I wish I could be more encouraging, but it is quite possible that it is too late for you to do anything about any of this. All legal actions have a deadline, called a statute of limitation; if the claim is not brought before the deadline, the person loses the right to pursue that claim. However, what happened is not really clear so perhaps if I understood what happened, I might see that there is still something you can do.

    It is odd that your attorney would also represent Bayer, but I don't understand what Bayer would have to do with your Social Security case. A former employer is not a party to that kind of case.

    What is it your attorney wanted to settle? What case? Did you also have a case against the employer for employment-related issues, or are you talking about your long-term disability claim?

    If there is some kind of fraud going on, so that your long-term disability payments are being paid to someone else, then you might be able to pursue something. It just isn't clear from the way you described what happened.

    If, when you mention the lawyer for the company, you are referring to the attorney who defended against your long-term disability claim, then I doubt you have a claim for violation of your privacy rights because when you filed your claim for long-term disability, you authorized the insurance company to have access to your medical records. The attorney for the insurance company would be entitled to that information, too.

    I am sharing your question with the employee benefits forum where it will be seen by more attorneys who might be able to assist you.

    I wish you the best.

    See question 
  • Laid off while on Disability.

    Hi, I wanted to know if an employer can or has the right to lay you off while on disability. Friends and family are encouraging me to seek legal advice. Thank you,

    Marilynn Mika’s Answer

    I agree with all the other attorneys who explained that an employer cannot lay you off or take any other adverse action against you if it is done due to your disability. There are limits, as already pointed out, that might allow an employer to lay you off based on what your job entails and how long you have bee out – but there are very few situations where this is the case. No one here can tell you if your absence causes an undue hardship on the employer because we don't know you, your job, your disability, or anything else.

    I suggest you speak with one or more experienced employment law attorneys with whom you can discuss the details of your situation. 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.

    See question