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Marilynn Mika Spencer

Marilynn Mika Spencer’s Answers

6,926 total

  • Can a manager tell you, you work less than 24 hours ahead of time?

    Our schedule is set up Wednesday through Tuesday, the final schedule usually isn't even posted until around Friday. Which even then she adds and changes shift on it with out talking to you, so you have to check it daily. So if the schedule ends Tu...

    Marilynn Mika’s Answer

    Your question is completely reasonable, and you'd think an employer would want to give as much notice as possible to employees to make sure they are available. Your employer is either poorly managed, disrespectful of its employees, or both.

    Unfortunately, employees have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. San Diego, like most other cities in the country, provides no additional protection for employees. 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 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: 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.

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  • My boss cutting my hours

    I'm full time and 5 1/2 months pregnant and I work at a doggy day care/hotel and it took two doctor notes for them to understand I couldn't work with big dogs cause the jumping and biting and some dog fights now they wanna cut my hours 15-20 hours...

    Marilynn Mika’s Answer

    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:

    For information on the Pregnancy Discrimination Act, see:

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

    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: or

    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 guide to unlawful discrimination under California law: which should help you understand lawful and unlawful discrimination, how to pursue a claim, and time limits.

    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, and you can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.

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  • I belong to a union, what are there legal responsibilities to members as far as representation?

    There appears to be little to no representation, union officials rarely visit our site, usually side with company on issues at joint greviance even when issues are clearly covered in contract.also union is in trusteeship due to legal issues. the u...

    Marilynn Mika’s Answer

    First, it appears the international union (kind of like the parent organization) is already aware of problems in the local as it has placed the local into trusteeship. This happens when the local leadership is under investigation for impropriety, or when the investigation is over and the international already determined there is impropriety.

    The international may have appointed temporary officers as a term of the trusteeship. If so, the temporary officers hold regular union meetings, so you should attend to find out what is going on, but be prepared for some degree of chaos under these extraordinary circumstances.

    Your local's and international's by-laws, or perhaps the constitutions of each body, will include a procedure to file charges against the officers of the union or against any other union member, under the specific circumstances described in the by-laws or constitution. Those procedures must be followed very carefully. They usually culminate in a hearing during which the member who filed charges must prove his or her case by a preponderance of the evidence (more likely than not). The response that said the higher standard, clear and convincing (substantially more likely than not), is not correct.

    If the conditions you describe arose only after the trusteeship and the trusteeship has been in place for several months already, then the international may not be paying much attention, or it may be negotiating a resolution (such as merging your local into another local), or temporary officers may not be up to snuff. Contact the next-highest union body, which could be a regional council, district, or division, or perhaps the international.

    You can also try contacting the local, regional body, or international by certified mail with a return receipt. Keep a copy of the letter. Sending a letter with a record of its receipt may get more attention than a phone call.

    There are various legal devices you can employ, too, but you should know that very few attorneys sue unions. The standard to prove a union breached its duty of fair representation (DFR) is very tough to meet and these cases are very difficult to win. A union breaches its duty of fair representation only if it acts arbitrarily, discriminatorily or in bad faith. Vaca v. Sipes, 386 U.S. 171 (1967). These words are legal terms of art and have a different meaning than in ordinary English and a different meaning in this area than in other areas of law. The level of wrongdoing required is far beyond negligence. It is premised on the union’s duty to represent the overall bargaining unit even if doing so is at the expense of one or more specific workers.

    To sue a union, there is a six month time limit, called a statute of limitation, in which to file a lawsuit. Private sector employees would sue in federal court and allege a violation of 29 U.S.C. section 301. Federal government employees would also file in federal court but they would allege a different statutory violation. Other government workers (state, county, city, etc.) would file in state court and allege a violation of the applicable labor relations statute.

    Alternatively, the employee can also file an unfair labor practice charge against the union with the relevant administrative agency. For private sector employees, that agency is the National Labor Relations Board (NLRB). For federal government employees, the agency is the Federal Labor Relations Authority (FLRA). Most California public sector employees would file with the Public Employment Relations Board (PERB). Other states will have similar enforcement agencies for public sector workers.

    When filing with an agency, you must allege one or more specific unfair labor practices identified in the relevant labor relations statute. No attorney’s fees are available in these cases even if you win, and there is a six month statute of limitation.

    The pension plan is administered separately, and different laws apply.

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  • My husband works for a union hall and they never seem to have work. His unemployment has ran out. What can be done?

    The workers are to sign a book but yet my husband gets bypassed. I don't understand how the hall is expanding when there isn't work. They are a joke with union dues. He works for plumbers and pipefitters local94. Why can't he quit and work for a r...

    Marilynn Mika’s Answer

    Hiring hall assignments often have a hierarchy based on the type of card the member has (A, B, traveling), and seniority. Sometimes this hierarchy can be bypassed by a direct request from an employer for a particular worker. Your husband should look at the hiring hall rules and the local union's by-laws to see if there is something he can identify that is in violation. He should also attend his union meeting, and ask right before the meeting starts for the procedure to raise a question from the floor. The, following that procedure, he can voice his concern. He should NOT accuse the union of wrongdoing because there may not be any, and if he wants to union to cooperate with him, he should be respectful . . . the same rule as with anyone in any situation.

    Has your husband been in any kind of dispute with the union? If so, and if the union appears to be withholding work because of that dispute, he may be able to file an internal charge under the by-laws.

    He can certainly withdraw from the union following the withdrawal procedures in the by-laws, though he may not be eligible to re-join in the future, depending on the local by-laws.

    Good luck to your family.

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  • Work for fed gov't, called out for 5 days, had doctors note, am union, told I need FMLA. Doctors excuse not enough?

    Even though am union and work for federal government, why would I need to apply for FMLA if doctor will write excuse, I don't understand why do I need to get FMLA

    Marilynn Mika’s Answer

    Who told you that you need FMLA documentation? What reason was given for the request? Your absence may not even qualify for FMLA leave, as that leave only applies if the employee or certain family members have a "serious health condition," as that is defined by the FMLA and its regulations.

    Most likely the agency wants to know if it can charge your five days of absence to your annual maximum FMLA leave, which is 12 weeks. Your agency's policies should address the circumstances under which employees must provide FMLA notification. This notification is different from most doctor's notes because, among other things, it states the medical provider is treating the employee for a "serious health condition" and identifies the category that qualifies the medical condition as such. FMLA notification may not contain a diagnosis. You can Google the name of your agency + "FMLA policy" and see what it says.

    Your union may or may not have negotiated something regarding FMLA into the memorandum of understanding (MOU or contract) . Look at the MOU and see, or contact the union and ask for assistance.

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  • What are my rights/actions to take after not being booked as an ind. cont. based on comments and allegations from other IC's?

    I am working as an independent contractor for a company and have not been booked for anything, even though I am just as qualified as others working for the company. The change happened I was put in the hospital following the negligent and wreckles...

    Marilynn Mika’s Answer

    I agree with Mr. Pedersen that your post indicates you may be an employee and not an independent contractor. Whether one is an employee or independent contractor is established by law, not by the decision of an employer or by agreement between and employer and employee.

    The general rule is that a person is an independent contractor if the employer has the right to control or direct the RESULTS of the work but not HOW the work is done or even WHAT work is done.

    Many employers misclassify workers as independent contractors and pay them as "1099 employees" when in fact they should be classified and paid as regular W-2 employees. Employers receive a substantial benefit from doing this, but there is NO benefit to the workers. If a worker is wrongly classified as an independent contractor instead of an employee, that worker will not be eligible for many benefits of employment or eligibility will be reduced. Areas affected include the right to:

    – be paid for all hours worked or controlled by the employer;
    – the legal minimum wage;
    – overtime pay;
    – rest and meal breaks;
    – workers' compensation insurance;
    – Social Security contributions;
    – unemployment benefits;
    – state disability benefits;
    – employer benefits such as vacation, sick leave, pension, medical insurance, etc.

    Also, in some states, including California, employers are subject to a penalty if they misclassify employees as independent contractors (see below).

    There are different ways to determine if a worker is an employee or independent contractor. Employers must comply with all relevant laws.

    FEDERAL TAX LAW: The Internal Revenue Service (IRS) looks at three areas to determine a worker’s status:

    Behavioral Control – This area considers instructions and training. If the employer has the right to direct or control the work, even if it does not exercise that right, the worker is an employee. These instructions might include when to do the work, or how and where to do it; what equipment or tools to use; who the worker can hire or not hire to help get the work done; what supplies and services to buy, and/or where to buy them. If the employer trains the worker in required methods of doing the work or the procedures to get the work done, this is evidence the employer wants things done its way, which indicates the worker is an employee and not an independent contractor. Therefore, if the employer gives the worker detailed or extensive instructions on how to get the job done, the worker is probably an employee and not an independent contractor.

    Financial Control – This area considers who has the right to direct and control the business, not just the work. The more of a financial or promotional investment the worker has made in the work, the more likely the worker is an independent contractor. However, there is no requirement for an investment in order to meet the definition of independent contractor. If the worker incurs expenses in performing the work but is not completely reimbursed, the worker is more likely to be an independent contractor rather than an employee, especially if these expenses are high. If the worker has the chance to make a profit or loss on the work, the worker is probably in business for himself or herself and therefore an independent contractor.

    Relationship of the Parties – If the worker does not receive benefits such as medical coverage, vacation, or pension, the worker may be an employee or an independent contractor. However, if the worker receives benefits, the worker is probably an employee.

    (continued in Comment below)

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  • What can an ex-landlord/employer legally say when asked for reference?

    My husband & I were hired as resident propty mgrs in CA. Our emplymt required us to live on-site. The owner/employer required us to sign a lease for our aprtmt but did not require an emplymt contract. He told us we were independent contractors(10...

    Marilynn Mika’s Answer

    Even if your settlement agreement with the employer does not require the employer to provide only neutral references, or if it is silent on its obligations with respect to references, there may be something you can do about the employer's bad-mouthing you. Some possibilities include defamation, false light, interference with contract, attacking the settlement agreement, and several other things. All of this could depend on the terms of the settlement agreement and may or may not be relevant, depending on the specific facts of your case. You will certainly have to retain and pay an attorney to handle this for you.

    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 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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