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Marilynn Mika Spencer

Marilynn Mika Spencer’s Answers

7,042 total


  • Is it sexual harassment to tell a female employee to "dress sexy" for the job?

    is it considered sexual harassment if you tell a female employee to dress in certain types of clothing because you like seeing her in them? She's fresh out of college and works as a fundraising director for the hospital and id love to see her tie ...

    Marilynn Mika’s Answer

    Seriously? You want to require an employee to dress a certain way because doing so is sexually attractive to you?

    I disagree with the three previous attorneys who seemed to focus on the *statement* and not the *requirement.* If you are the employee's superior at work and tell her you want to see more of her body – apparently her cleavage – then you are telling her that is how she should dress in order to gain your favor. Even if you give her the instruction/suggestion/hint by reference to how she adjusts her clothing and not by reference to her body, the meaning is the same. You have let this employee know you are thinking about her in terms of sex appeal and you want her to adjust her conduct (how she dresses) to please you.

    As mentioned, for conduct to constitute unlawful harassment, the conduct must be either severe or pervasive. If the employee is required to dress to conform to your sexual appetite, then it is pervasive because it is an on-going, daily requirement – not a one-time thing. You have altered the terms of this employee's job from one that is purely professional to one that includes the requirement that she sexually titillate her boss.

    Why do you even ask this question? It sounds like you are hoping for an okay to do something you know is wrong. Did you ask the hospital's human resources department? I bet you didn't.

    Let the woman do the job she was hired to do. Keep your desires to yourself. If you cannot control your thoughts or actions, transfer to a different position. Don't make her pay for your own issues.

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  • Can an employee fight a suspension if they feel like it is retaliation

    I was suspended from work with no letter explaining what misconduct was done. Was told I had a 12 minute call and it was not okay, the call was made during my break. I'm experiencing retaliation for applying to another department. Told my supervi...

    Marilynn Mika’s Answer

    This sounds unfair, but it is probably completely legal. First, it sounds like the 12-minute call was on a company phone – otherwise, how would the employer know how long the call was? If the employer does not allow es to use its phones for personal calls, then you have used company property for an improper purpose. Also, assuming the company pays for all phone calls – which is common for businesses – then you have cost the company money. Most likely it was a very small amount of money, but still many employers would consider it a theft of company resources. Moreover, most employers would not want employees to believe they can use company resources without permission.

    If the employer allows employees to use its phone, the perhaps there was a reason other than the call. If that reason was applying to another department, then it is not grounds for wrongful suspension or wrongful termination.

    When people talk about “wrongful termination,” they are using a shorthand term for "wrongful termination in violation of public policy." For a termination to be “wrongful” under the law, it must violate a public policy.

    "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. There is also legal protection for whistleblowers, employees who 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.

    In short, an employer cannot change terms of employment, discipline or fire an employee if the reason is against the law; because of the employee’s race, sex, disability, etc.; because the employee blew the whistle on safety violations or needed family and medical leave; or any other reason protected by law.

    Note that when I refer to “discrimination” above, I am using the legal definition. Under the law, "discrimination" means to treat an employee or group of employees 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.

    Employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

    Take a look at my guide to at-will employment in California which should help explain employment rights: http://www.thespencerlawfirm.com/pdf/tslf-at-will-california.pdf. If the guide helps identify actions or behavior that fits one of the categories that allows for legal action, contact 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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  • Is working me only 3 1/2 hours, 4 at the most, legal? What is the minimum amount of hours you have to work a week?

    So my employer used to work me around 15 hours a week, and now is only working with 3 1/2 hours maybe 4 hours a week.

    Marilynn Mika’s Answer

    Please look at my Avvo guide on California's at-will employment law, which should help you understand your rights in this difficult situation, as well as in the future. http://www.avvo.com/legal-guides/ugc/a-short-summary-of-california-at-will-employment

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  • Do I have a leg to stand on if I don't abide by sudden dress code change?

    I've worked at my job for about 10 years now, and haven't had any problems. However, today they've changed the dress code, effective immediately, to have all tattoos covered (all of which I was hired with) and piercings removed (nose ring in s...

    Marilynn Mika’s Answer

    I agree with Mr. Byrnes' and Mr. Treglio's responses. Unfortunately, employees 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. An employer can change its own policies whenever it wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

    There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.thespencerlawfirm.com/pdf/tslf-at-will-california.pdf. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.

    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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  • Is this discrimination? Is a temporary note sufficient if my job doesn't hassle me about the accomodation? I feel ignored.

    I was diagnosed with a physical disability in Sept 2015. I contacted my HR manager and informed her that I would like a restriction on how much weight I can lift because of said disability. She had me sign a temporary note she typed up, restrictin...

    Marilynn Mika’s Answer

    You didn't mention what kind of claim you are referring to or what its purpose is. If it is for the purpose of getting reasonable accommodation for your disability and you are getting the reasonable accommodation you need, then even though HR is treating you disrespectfully, you are probably not suffering any actual harm.

    You might send something in writing to HR (and keep a copy AT HOME for your records) saying that since HR has not responded to your many inquiries or followed up in any way you have been notified of, you will assume the company agrees you are entitled to the reasonable accommodation that you have received.

    If you get any hassle after this, keep a log of any comments, adverse actions or other funny business, starting with the day the first inappropriate comment or adverse action took place. Write down the date, time, what was said or done, who said or did it, and any witnesses. Be sure to include any complaints you made to HR, your boss or anyone. Keep your log at home, not at work, because you never know what will disappear.

    The best logs describe facts, not opinions. For example:

    This is a good log entry because it describes facts: 02/14/2014 2:30 p.m. Margaret Vader said to Enrique Lopez "See that guy over there? He's a @#$." I was standing less than five feet away when she said this. Also within earshot were Alice Anderson, Benay Banquette, and Candice Crzmik.

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

    You may eventually need 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 I get any compensation from them?

    Poker dealer for 13 years, now management wants new dealers. New drop procedures where implemented and 9 dealers where written up. Now me and 8 other experienced dealers are delegated to deal tournaments only and no live dealing. That means no tip...

    Marilynn Mika’s Answer

    This sounds like a rotten situation. Assuming you work for a private employer and not for an Indian tribe, employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

    There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.thespencerlawfirm.com/pdf/tslf-at-will-california.pdf. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.

    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.

    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.

    If you work for an Indian tribe, the above does not apply and you probably have even fewer rights, depending on the tribal compact.

    I hope there is a good resolution to this situation.

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  • The bonus should be extra money in our pockets, is it legal to make us use our money to clean there trucks?

    the company i work for offers us a 1.00 an hour bonus if we keep our trucks clean. however they expect us to buy all cleaning supplies and pay up to 75.00 for a truck wash.

    Marilynn Mika’s Answer

    I agree with Mr. Byrnes and write to add a bit more information.

    First, it can be difficult to determine if you are properly classified as an independent contractor or employee. Assume you are an employee unless there is evidence to the contrary. Please see my guide detailing which workers are employees and which workers are independent contractors: http://www.thespencerlawfirm.com/tslf-ic-vs-ee.php.

    Second, assuming you and your coworkers are employees and the employer is pursuing an illegal pay practice, for your protection, whatever action you take (if any), please do it on behalf of yourself AND the other employees. It's best if you and at least one other person take the action, but if you cannot get anyone else to join you, make it absolutely clear that what you are doing is on your own behalf AND on behalf of the other employees. This is because employees have a right to concerted activity (acting together, acting "in concert") for things related to wages, hours and terms of employment. This right is guaranteed by the National Labor Relations Act, as amended, 29 U.S.C. §§ 151 - 169 (NLRA, also known as Labor Management Relations Act or LMRA), the same law that allows workers to organize into unions.

    Finally, even if your employer is breaking 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 lawsuit, 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.

    (continued in Comment below)

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  • Is there something I can do?

    I have worked for a bank for approximately 2.5 yrs. And, several employment opportunities have arisen in my department. I have applied for these positions 3 x's and I have never been asked to interview. I have trained everyone in my department so ...

    Marilynn Mika’s Answer

    I agree with attorneys Kirschbaum, Treglio, and Lind, all of whom gave good answers regarding the law. Consider tackling this directly, professionally and respectfully. Understand the bank or supervisor may feel there was something wrong with your work but never told you. Ask to speak with your boss first, and if you do not get any helpful answers, then try speaking with HR. Ask if you’ve done something indicating you are a poor worker or if the boss/bank thinks you were responsible for something that happened. Maybe something was misinterpreted, though probably not. More likely you will never know what is really going on. However, a mature conversation may change the way the employer treats you and may cause a change in the decision.

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

    Do not blame anyone else even if you believe someone deserves it; this cannot help you. Only talk about yourself, that you want to do a good job. Ask what you can do to improve your chances for promotion in the future. Don't give anyone a reason to get angry.

    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.

    See question 
  • New restrictions after AME report

    AME report dated 2013-Condition has since worsened after permanent and stable with obvious physical disability but employer refuses additional restrictions. Case closed with attorney. What do I do? It appears like clear violation of ADA.

    Marilynn Mika’s Answer

    • Selected as best answer

    You are aware you may have rights under the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) and/or the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA). Many on-the-job injuries meet the definition of "disability" under the FEHA, or under the FEHA and the ADA. If they do, you may be entitled to reasonable accommodation for your disability. This would require the employer to alter the way work is done so that you are able to perform the main parts of your job. Your rights under the FEHA or the ADA are separate from any rights you may have under workers' compensation.

    Please look at my guide to the ADA: http://www.thespencerlawfirm.com/tslf-ada.php and my guide to the differences between the ADA and California's more generous FEHA: http://www.thespencerlawfirm.com/tslf-feha-vs-ada.php.

    You may also have rights under the California Family Rights Act, Government Code section 12945.2 (CFRA) and/or the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA). To be eligible under the family leave laws, all of the following must be true: (1) your employer has at least 50 employees who work within 75 miles of one another; (2) you have worked for this same employer for a total of one year, even if not consecutively; (3) you have worked for this employer for at least 1,250 hours in the immediately preceding year; and (4) your medical condition meets the definition of “serious medical condition” under the family leave laws. Your rights under the CFRA or the FMLA are separate from any rights you may have under workers' compensation.

    Please look at my guide to the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA): http://www.thespencerlawfirm.com/tslf-fmla.php.

    If these laws seem to apply to your situation, 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