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Marilynn Mika Spencer

Marilynn Mika Spencer’s Answers

6,888 total


  • Can my company fire me for filing a wage claim against them for unpaid rest breaks?

    I am an at home medical transcriptionist working for a company in MA and paid piece work. They claim the pay for rest breaks and nonproductive time (checking work email, etc) are all part of the line rate, a joke in itself as we are paid by a pun...

    Marilynn Mika’s Answer

    • Selected as best answer

    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. 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.

    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 need an attorney for my case?

    I received a federal/state right to sue from the EEOC, what is the next step? how does mediation work? why did I get a federal and state right to sue? do I need an attorney to try and settle? the issue at hand here was the boss I worked for told a...

    Marilynn Mika’s Answer

    You've received some good information already in the previous responses. I write to explain why you received two right-to-sue letters.

    Before a victim of employment discrimination can file a lawsuit, he or she must first file with a government agency and obtain a right-to-sue letter. The same acts of discrimination may violate federal law and also state law. The Equal Employment Opportunity Commission (EEOC) administers federal laws pertaining to employment discrimination; the California Department of Fair Employment and Housing (DFEH) administers California laws pertaining to employment discrimination. Both agencies are charged with receiving claims of discrimination, investigating those claims, and prosecuting viable claims.

    Because the work of the two agencies overlaps, there is a work-sharing agreement between them. The agency that receives the complaint (the one in which the employee files) is the agency that will investigate the claims. The agency in which the employee files will provide the employee with a right-to-sue letter from the other agency as part of the work-sharing agreement; then the receiving agency will investigate the claim (at least theoretically). At the end of its investigation, it will issue its own right-to-sue letter.

    The above is more theoretical than real. The DFEH rarely does much of an investigation (though the agency recently got new leadership so we are hopeful things will improve) and neither agency takes many cases to litigation. In most cases, the mandatory requirement to exhaust administrative remedies (that is, file with one of the agencies and receive a right-to-sue letter) does little to help the employee. It is a necessary step, however, before litigation.

    You asked whether you need an attorney to try to settle. In most cases, yes, especially if you want a meaningful remedy. The problem you will face is that although there was, apparently, a violation of law, it will probably be hard for you to demonstrate how you have been harmed by the breach of confidentiality. This does not mean that you have to have specific economic harm because disclosure of confidential information is by itself the harm. But a real remedy is not possible in your case because the information is already disclosed and cannot be un-disclosed. Certainly consulting with an attorney may help you clarify an adequate remedy. However, without a potential for a dollar recovery, it is harder for the attorney to get paid for her work, although the statutes involved do not require an economic recovery before attorneys fees can be awarded.

    The best thing you can do is contact a number of attorneys and see who is available to review your options or provide you with some guidance. 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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  • Can an employer disclose information about its employee to its parent company? What Federal and/or CA laws apply?

    private company name and other personal data

    Marilynn Mika’s Answer

    Mr. Kirschbaum and Mr. Pedersen are correct – it makes a difference what kind of information you are referring to. Information that is available to the general public or a matter of public record can be shared. This includes court records, real property records, and more.

    There is almost no right to privacy in the workplace. The only information an employer is required to keep confidential is medical, disability and reasonable accommodation information (except on an absolute need-to-know basis) and Social Security Numbers.

    There is no right to privacy in performance reviews, the employer's opinion about employees, why an employee left the job, why an employee was disciplined, how much money an employee makes, or anything of that nature. With very few exceptions, there is no right to privacy in work e-mails or text messages, on work computers even using personal e-mail accounts, on work telephones, in desks or lockers at work, and pretty much in every single thing done at the workplace.

    Some employers have privacy or confidentiality policies, but these rarely have the force of law as they are usually not contractual and the employer can change its own policies at any time.

    I suspect you have a particular concern. If so, you may wish to consult 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.

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  • Labor law question. Federal employee FLSA exempt where do I find laws that apply to me? Can expenses exceed wages?

    I have researched this extensively & am still stuck. Need to know if I am FLSA exempt but not paid flat salary & instead earn hourly wage based on hours I work can unreimbursed expenses be greater than my pay for week I work even if minimum wage l...

    Marilynn Mika’s Answer

    There is far more information needed before anyone can answer your questions. Some – but not all – of the information needed includes: your job title and duties' your GS or other classification; the nature of your travel; the nature of the expenses incurred; your agency's policies; and more. The analysis is too fact-specific to be handled via a public web-site like Avvo. The Avvo board 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 everything written here.

    I urge you to consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation because you need an assessment of the specific facts. Be sure to look for an attorney with experience representing employees of the federal government; as I'm sure you know, federal employment is quite different from employment in the private sector.

    You can find a plaintiffs employment attorney on the National Employment Lawyers Association (NELA) web site www.nela.org. NELA is the largest and most influential bar association in the country for attorneys representing working people. You can search by location and practice area. Also, NELA has affiliates in every state and many cities which are listed on the NELA site. Not all NELA attorneys are named on the web site or affiliate site. This should not influence your selection; attorneys can choose whether or not to purchase a listing in the national directory, and each affiliate has its own rules for listing.

    Good luck!

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  • Because of my low credit score an online cash advance business wants me to send in money via western union .....fraud? Real?

    Low credit score....cash advance online business. They asure me that the loan amount will be sent as soon as I send them the 'insurance' protection for my loan

    Marilynn Mika’s Answer

    This is not my area of law but it sure sounds suspicious. People engaging in fraudulent schemes often uses Western Union. But I don't understand why YOU are sending money to a supposed business tha you contacted because YOU need an advance. Is it a processing fee? This just doesn't smell right.

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  • As a federal employee can your supervisor change your yearly evaluation half way into the evaluation period?

    I work for the government. I am a front line supervisor.

    Marilynn Mika’s Answer

    Are you asking if the agency can change your evaluation six months after it was completed (halfway into the NEXT evaluation period)? If so, it will depend on whether the agency learned new information it did not have before regarding your performance in the previous evaluation period.

    If you are asking about the current evaluation period, then there is nothing to change because the evaluation period isn't complete. If you received a six-month evaluation, then again, it can be changes where the agency learns something that pertains to the previous period.

    If you are asking something else, please explain.

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  • I am a federal employee. What impact does agreeing to attend ADR after the 180-day investigatory period have on my complaint?

    The federal agency has not done anything to process my formal complaint. They took 5 months just to issue an acceptance letter. The 180-day period for investigation of the formal complaint ends early May. I requested ADR a month ago and they just ...

    Marilynn Mika’s Answer

    Federal agencies are often very, very late and very, very slow in processing EEO claims. They do not have adequate budgets to do the job they are required to do, and it is not a priority for the agency. It is no surprise, therefore, that your agency was slow to process your complaint.

    ADR often takes place after the 180-day period, although it is supposed to be the other way around. It can take places in the midst of the formal process. The parties can agree between themselves to attempt informal resolution at almost any time. If you have already been assigned to an administrative judge, you should ask the administrative judge for a status conference (in writing with a copy to the agency representative) to discuss with the judge whether there are any consequences. FYI I have never encountered any consequences in my many years of representing federal government employees.

    You might be better off holding the ADR meeting until the investigation is complete and you have received the investigative file (IF) because it is possible your agency understood from the investigator that it had better try to settle the case. If so, you want to know what it is the agency knows so you can use it to your advantage.

    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.

    Here is some important information about the EEO / EEOC mediation process:

    In nearly every case, you need your own attorney for an EEO meediation. The EEOC is not your representative. A mediator for the Equal Employment Opportunity Commission (EEOC) www.eeoc.gov has one client – the United States of America. Some EEOC mediators are great and will do their best to protect you rights even though they are not your advocate. Some EEOC mediators stink and care more about closing the case than they care about your rights.

    Because the EEOC has a particular mission and because it is not representing you, if it turns out your interests and those of the EEOC clash, the EEOC mediator will first and foremost make sure the agency’s goals are carried out, not yours.

    Also, the EEOC will only consider issues relevant to laws the EEOC enforces, such as discrimination laws. It will not consider mutuality in the settlement agreement, circumstances under which you might have to return any money the agency paid, the language of the settlement agreement (which could have all kinds of "gotchas" that the EEOC doesn't notice or doesn't deal with), and more.

    In addition, EEOC mediators most often handle low-value cases because that is what ends up in their offices. They handle high-value cases far less frequently, and even less frequently handle high-value cases where the charging party doesn’t have an attorney. If you show up without an attorney, the mediator may interpret your case as low-value, even if it isn’t. Of course the mediator may learn the value of your case during the mediation, but why start off with such a large obstacle?

    (continued in Comment below)

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  • Do I have to give a deposition in a federal eeoc matter??

    The attorney advisor for my company wants to extend the discovery period another 30days in a EEO complaint I filed. It has been almost 2 years and I would not like for it to be extended. In her motion she stated that I didnt reach out and try to...

    Marilynn Mika’s Answer

    It isn't clear what court or agency your case is in. Your refer to "EEO, which only applies to federal government employees. However, you refer to your "company," which indicates private sector.

    If you are a federal employee or if your complaint is filed though the federal EEO system, Mr. Sripinyo is absolutely correct. The EEOC administrative judge can sanction you for not appearing at a properly-noticed deposition. Sanctions can include a ruling that any deposition testimony you could have given would be adverse to your case; a monetary penalty; or even dismissal of your case.

    You can testify at your deposition to your e-mail evidence. If the deposition subpoena includes a request that you bring certain documents with you to your deposition, and if the e-mail messages you refer to are encompassed by that request, then you can bring copies with you. Don't turn over your originals or your only copies - be sure to retain your own.

    In a legal proceeding, an "objection" is a legal term of art referring to the specified process to object to whatever the other side wants to do. These objections are filed with the court or administrative entity that is hearing your case. There are time limits for making these objections, format and law requirements, service requirements, and filing requirements. An e-mail to the other side is completely inadequate.

    It sounds like you could use some professional guidance in processing your case. I know it can be difficult to understand the process and to locate an attorney who has the right kind of experience, but they are out there. Because of these difficulties, 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.

    Good luck!

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  • Should I file a claim with the DIR or hire an attorney?

    My previous employer fired me a few weeks ago. She told me to do something unsafe that I was not comfortable with. When I voiced my concerns, she told me that she didn't care what I felt, she was the boss. I informed her that if actions were not t...

    Marilynn Mika’s Answer

    The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations (DIR). 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 DIR does not handle safety issues. Safety violations are handled by the federal Occupational Safety and Health Administration. (OSHA )or the California equivalent, Cal-OSHA.

    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)

    In your situation, as you have multiple issues that involve two separate agencies (both of which are understaffed and overworked), it makes sense to work with an 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. 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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  • Can employees be forced to take 30 minute breaks if working a scheduled shift less than 5 hours, 4 hrs, 3 hrs?

    The manager is doing this daily as a way to save labor cost. This store is part of a worldwide chain.

    Marilynn Mika’s Answer

    Your employer appears to be poor at planning and poor at management. Unfortunately, neither is illegal.

    Here is what the law says about breaks: California employees are entitled to one 30-minute meal period if they work 5 hours or more in one day. However, the employee and the employer can agree to waive the meal period if the employee works no more than 6 hours in one day. Employees who work more than 6 hours in one day may not waive their meal breaks. The 30 minute meal break must be a full 30 minutes -- not 29 minutes -- and must be completely free from duty. These 30 minutes must be “net.” They cannot include time spent walking to a time clock; the 30 minutes must be actual break time. The meal period should be given in the middle of the work day. The meal period is unpaid. 


    Employees are entitled to one 10-minute rest period for every 4-hour period of work performed, or major fraction of the hour. If an employee works 3-1/2 hours per day, there is no rest period requirement. The rest period must be 10 full minutes -- not 9 -- and must be completely free from duty in most cases. These 10 minutes must be “net.” The rest periods should be given in the middle of each 4-hour block of time. The rest periods are paid.

    Example A: The employee works an 8 hour shift from 8:00 a.m. to 4:30 p.m. There should be one 10-minute rest break at approximately 10:00 a.m. The meal break should be from approximately 12:00 p.m. to 12:30 p.m. There should be a second 10-minute rest break at approximately 2:30 p.m.

    Example B: The employee works a 5 hour shift from 12:00 p.m. to 5:00 p.m. There should be one 10-minute rest break at approximately 2:30 p.m.

    Example C: The employee works a 6 hour shift from 12:00 p.m. to 6:00 p.m. The employee and employer have agreed to waive the meal break. There should be one 10-minute rest break at approximately 3:00 p.m.

    Example D: The employee works a 6 hour shift from 12:00 p.m. to 6:00 p.m. The employee and employer have NOT agreed to waive the meal break. There should be one 30-minute meal break from approximately 2:45 p.m. to 3:15 p.m.

    The employer must make these breaks available to employees and cannot interfere with the employees’ freedom to take the breaks or discourage employees from taking breaks. However, the employer does not have to make sure employees actually take the breaks.

    If the employer has actually PREVENTED or INTERFERED WITH the employees' ability to take breaks, the employer may have to pay a penalty of one additional hour's pay for every day in which a meal break is not allowed, and one additional hour's pay for every day in which one or both rest breaks are not allowed.

    I realize how unpleasant and inconvenient your employer's practices are. Obviously it makes it difficult to plan your life. 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. 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.

    Sounds like it's time to look for another job.

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