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Marilynn Mika Spencer

Marilynn Mika Spencer’s Answers

6,888 total


  • Are there lawers who specialize in defending federal employees.

    I worked at Puget Sound Naval Shipyard about 4years ago I tried some of my wife's medical marijuana for some pain relief for a serious foot condition I have. Every 10 years we have to fill out a new security form so the navy can check up on you to...

    Marilynn Mika’s Answer

    Jeez. The federal government is so irrationally hard on marijuana use.

    My office regularly represents federal government employees. Challenging a security clearance denial is very difficult, though sometimes possible. There should be an internal-agency process that will have strict deadlines. Do not miss those deadlines! Sometimes they can be extended for good cause.

    There is not likely to be an agency EEO (Equal Employment Office) option. If so, it would have to be based on disability under the Rehabilitation Act, but it will likely be a loser. And note you have 45 days from the date of the adverse action to take your first step toward an EEO case by initiating informal counseling.

    There are very limited circumstances under which the Merit Systems Protection Board (MSPB) can take a security clearance case. It will not look at the underlying basis, however. And the MSPB is a conservative agency. There is a 30 days time limit.

    The union may have dealt with this before and perhaps can offer some guidance.

    All that said, you can only select one avenue among these three: EEO, MSPB, and union. You cannot pursue more than one at a time.

    The internal agency appeal is probably your best bet, for any formal action, not because it's a good option but because the other three are such bad options. I don't know if you can do the inter-agency appeal and then one of the other three because I don't know your particular agency's policy. If it uses the general DoN/DoD policy, then I believe you are precluded from any other option.

    If you receive a notice of proposed removal, you have the right to respond either orally or in writing within 30 days. You should definitely provide a response; I usually respond both orally and in writing on behalf of my clients. This response is your best opportunity to prevent the agency from taking the adverse action. It is *always* easier to prevent an agency from taking the action than it is to get the agency to reverse the action after it is in effect.

    The proposed removal must comply with the Douglas Factors. The Douglas Factors are due process requirements established by case law. Whether your agency complied with these Factors is something to go over in detail with an attorney.

    If the agency removes you or issues other discipline, you may have the right to appeal the removal. Civilian employees of the federal government have due process rights that the employing agency must honor before it can take an adverse action. Often, a permanent federal employee has the right to appeal an adverse action to the Merit Systems Protection Board (MSPB) within 30 days of the effective date. In this context, an “adverse action” means a removal, suspension for over 14 days, pay or grade reduction, or a furlough for 30 days or less. You can find out more about the MSPB and how it operates on its web site: www.mspb.gov.

    The most likely avenue to help you will be based on strategy and negotiation. You may be able to rely on your lengthy, and hopefully good, employment record. You may be able to make a policy argument (which I do not want to state on this public web site). You will almost certainly need an attorney, and almost certainly have to pay hourly.

    (continued in Comment below)

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  • Can my employer insist on a letter from my Dr, giving specific details of allergies that have never been an issue at work?

    It is common knowledge in my work area that I have life threatening allergies to nuts, bananas ,bees. On June 6,2015, an empty bag of peanuts was found inside my locker. Reported to HR, ignored. Yesterday, 2 peanuts were left, intentionally, where...

    Marilynn Mika’s Answer

    For the threatening activity to constitute illegal discrimination or harassment, the employer must be implicated in some way. If these things were done by anyone in management, then of course the employer is implicated. If a co-worker has done these things, and if you reported this type of activity to the employer before, then the employer is on-notice. Moreover, the employer is legally obligated to take steps to eliminate discrimination and harassment in the workplace.

    If you are asking your employer to takes steps to ensure you are protected from these serious allergies, then the employer has the right to documentation to support your need. The medical documentation already on file may be sufficient or may not be, depending on what the documentation says. For a reasonable accommodation under the Americans with Disabilities Act (ADA) or the Fair Employment and Housing Act (FEHA), the documentation should include what major life activities are affected by the medical condition (such as "breathing") and the expected duration (such as "permanent".)

    Overall, it appears your employer either doesn't know its obligations under the law, or doesn't take you seriously. Given the extreme importance of this situation – life threatening – you may need to retain an attorney to intervene on your behalf. This should not be necessary, but since your employer is not doing what it should, then your next option is to see if you can get it to do what it should, and to prevent the employer from thinking you are "too much trouble" (also illegal under these circumstances) and trying to drive you out.

    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.

    For this type of assistance, you may need to pay hourly. Plaintiffs employment attorneys in California charge anywhere from $250 to $750 an hour depending on many factors including experience, area of law, geographic location, work load, interest in the case, difficulty of the case and more. You should expect to need at least three hours for this kind of consultation.

    Understand that the Equal Employment Opportunity Commission (EEOC) and the similar California agency, the California Department of Fair Employment and Housing (DFEH), do not intervene to prevent discrimination or harassment. All these agencies do is potentially provide a remedy after the fact. You need help in keeping your job, and keeping alive. "After the fact" is too late.

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  • 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: 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.

    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:
    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 guide to unlawful discrimination under California law: http://www.thespencerlawfirm.com/tslf-discrimination-california.php 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 www.cela.org, and you can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.

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  • Is this age age discrimiation? 47 YO male, with a great record of success; I am both the oldest and lowest paid in my position.

    I am a 47 YO male, with a stellar record of internal and external accomplishments. I am both the oldest and lowest paid in my salary grade. I was provided a list of all salaried employees of my fortune 500 company and when I sorted based on my j...

    Marilynn Mika’s Answer

    The little bit of information you provided certainly should make you question what is going on at your work place, and there may indeed be age discrimination or another impermissible reason for this result. But employment law is complicated and fact-specific, and an attorney will have to analyze your situation in detail, including the document you refer to; your employment history with this employer and perhaps with other employers; your personnel file, including evaluations; and more. You may wish to consult with an experienced plaintiffs employment lawyer. It is unlikely a short (30-60 minute) analysis will reveal enough information to know if you are the victim of age discrimination, though it might be able to rule out discrimination on that basis.

    You should know a little bit about the law before contacting an attorney so you will be able to provide relevant information. First, California employment is most often at-will, per Labor Code section 2922. “At-will” employment allows an employer to do almost anything it wants with respect to employment. It can rearrange, modify, change, eliminate, and add jobs, hours, compensation, benefits, schedules, duties, titles. It can hire, fire, transfer, demote, promote, train, and not train employees. These changes must take effect prospectively (in the future). For example, an employer cannot change your pay rate for work you have already done, but can change it for work you have not yet done.

    There are a just a few things that might prevent an employer from doing what it wants:
    (1) public policy;
    (2) Constitutional (civil service) rights;
    (3) a collective bargaining agreement (union contract);
    (4) an individual contract;
    (5) contracts for a specific term; or
    (6) employment policies.

    (1) Public policy refers only to things that are specifically prohibited by a statute (law) enacted by the legislature, or prohibited by a regulation promulgated (established ) by a government agency. Public policy includes statutes prohibiting discrimination against people in specific protected groups, which include sex, race, national origin, disability, sexual orientation, age (40 years and older), religion, marital status and pregnancy.

    In this context, “discrimination” means to treat differently from others who are not in the same protected group, but are similarly situated. “Discrimination” does not mean an employer has to be fair, or has to make good decisions.

    In California, a person complaining of discrimination must file a claim with an administrative agency before he or she can file a lawsuit. The person can file a claim with either the California Department of Fair Employment and Housing within on year of the discriminatory act, or with the federal Equal Employment Opportunity Commission (EEOC) within 300 days of the discriminatory act.

    The DFEH web site is: http://www.dfeh.ca.gov/
    The EEOC web site is: http://www.eeoc.gov/

    Public policy also protects people who blow the whistle on a matter of public concern, complain about improper wage and hour practices, or who exercise voting rights, family leave rights, jury duty rights, domestic violence rights, and a few more statutes. There are various ways to enforce these rights.

    When people talk about “wrongful termination,” they are really talking about wrongful termination in violation of public policy. For a termination to be “wrongful,” it must violate a public policy. An employer cannot change terms of employment or fire you if the reason for the change is against the law. For example, an employer cannot increase your workload because of your race, sex, national origin, religion, etc. or because you blew the whistle on safety violations.

    (continued in Comment below)

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  • I was in union for 25 yrs then had a stroke at age 47 lost my job could not work no more got out of union. No pension they said

    They told me I wasn't vested I told them I had over 20 yrs and I wasn't able to continue work to be able to get vested what can you do for me they told me nothing I feel cheated for all the years I paid dues tothem

    Marilynn Mika’s Answer

    The pension plan itself, and the summary plan description (SPD) if there is one, are the documents you need to review to know what your rights are under the plan. Vesting is usually five years. Most likely you will need to retain an employee benefits attorney to fully understand the plan requirements, as most employment attorneys do not have experience with either unions or union pension plans. Expect to pay the attorney on an hourly basis, between $250 and $650 an hour, depending on many factors.

    You can try to find an attorney with the right experience on the 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. Be sure to search for an attorney who stats she or he represents clients in employee benefits, and when you contact the attorney, find out in advance the degree of experience with union pension plans.

    I hope there is a good outcome for you.

    I hope there is a good resolution to this situation.

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  • Harassed by employees and union

    My husband is a fairly new manager and is constantly being scrutinized by his employers and its union; they examine comments made by him, changes in procedures that he has done to make the workplace better for employees and customers. The union co...

    Marilynn Mika’s Answer

    Your husband is part of management and should be taking his issues up with his supervisors, or if those supervisors are the ones with whom he has problems, he should move up the chain of command. It is a sign of incompetent upper management that your husband did not receive better training for his management position.

    He should understand that in a situation where there is a union, everything - absolutely everything - that affects wages, hours, and terms of employment is a mandatory subject of bargaining, which means neither the employer nor the union can change things on its own. If your husband is making changes that affect the collective bargaining relationship, he may subject the company to liability. He should talk to labor relations ASAP to find out what he can and cannot do

    He is not likely to have any personal liability if he is acting on behalf of the company, but I do not know Hawaii laws so there might be something unusual there.

    He should NOT EVER contact the union without guidance from the employer's labor relations office. He could be violating the contract between the union and the company.

    Really . . . this company needs to train your husband on interacting with the union.

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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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