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Marilynn Mika Spencer

Marilynn Mika Spencer’s Answers

7,042 total


  • What can he do about his job he knows he should just look for another job, but there not that easy to find right now.

    My son works for a company, they work a different place everyday. Well when I go to drop him off we cant find them. Sometimes we drive around for an hour and nothing. He calls his superviser 10 times he wont answer, he text him, and gets no r...

    Marilynn Mika’s Answer

    This situation is unusual and demonstrates that the employer has no respect for your son or his family. It appears the employer is intentionally avoiding providing your son with basic information by not answering the phone. This employer doesn't care about the consequences for your son.

    Your son should not expect things to get better. If anything, he should expect them to get worse. I agree with Ms. Abrams and Mr. Pedersen – your son needs to get out of there. He might be entitled to unemployment benefits even if he resigns. It's not possible to know without learning all the details but it doesn't cost anything to apply, so he has nothing to lose.

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  • Modify to work ----- deadline to accept it

    By law, how many days do I have to think and decide if I will accept the modify to work . 30 days or 60 days

    Marilynn Mika’s Answer

    Work modification is terminology that is usually used in workers' compensation cases. If your case involves an on-the-job injury, then I agree with Mr. Pedersen that you should re-post in the California workers' compensation forum.

    That said . . . . know that 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.

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  • Can a federal employee retire with an EEO pending against him/ her?

    I filed an EEO against a federal supervisor prior to him/ her retiring. EEO was processed late and thus the federal supervisor retired and I don't know what will happen now.

    Marilynn Mika’s Answer

    Your claim is against the agency, not against any particular supervisor – even though you may have named someone as the bad actor, called the responsible management official (RMO). The essence of your case is not affected by the RMO's retirement. The available evidence might be affected and this could be in your favor or not. Sometimes the RMO is uncooperative with the agency and will not make himself or herself available for the hearing or preparing for the hearing. This requires the agency to rely more heavily on other witnesses to make its case, or on file documents. If some of your allegations are of the "he said, she said" variety and you are the only witness who appears, then the agency may have a hard time rebutting your testimony.

    You will need to present your case based on your own evidence. Even if the RMO is still available and appears as a witness, you cannot rely on the RMO testifying truthfully. Sometimes they lie. Sometimes they don't remember. Sometimes they remember differently from what the complainant remembers.

    Know that nothing about an employment case can be predicted in the abstract. It would be foolish for anyone here on Avvo to try to tell you what is likely to happen without knowing the facts. If your case is important to you – and I assume it is – give it the attention it deserves and get yourself an attorney.

    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.

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  • How do I confront my Company about miss-categorizing me as Exempt when I am supposed to be a non-exempt employee?

    I am an Exempt computer professional in San Diego, CA I make about $31.00 an hour, 67K annually. I do administrative work, I schedule, monitor and trouble shoot video conferencing systems full time. I feel like I've been miss-categorized as Exempt...

    Marilynn Mika’s Answer

    No employer will welcome being confronted, especially not to hear that it is violating the law. I will discuss this further below. Generally, whether an employee is exempt depends on what the job duties are and for what percentage of time the employee performs the respective duties. The law assumes all employees are entitled to overtime, so the employer has to prove that someone is not. There are a number of jobs and circumstances that are exempt from overtime: http://bit.ly/18Xt68G. An incomplete summary of the three main categories of employees who are exempt are:

    EXECUTIVE/MANAGERIAL: The employee: has duties involving management of the full enterprise or a recognized division; customarily directs two or more employees; can hire or fire, or whose recommendations are given weight; regularly exercises independent judgment; earns a salary of $3,120 per month or more; and does all of this at least 51 per cent of the time.

    ADMINISTRATIVE: The employee: performs office or non-manual work that is directly related to management policies or business operations OR performs administrative functions in a school in work directly related to instruction; regularly exercises independent judgment; regularly and directly assists an owner or bona fide executive or administrator; performs specialized or technical work under only general supervision; executes special assignments; earns a salary of $3,120 per month or more; and does all of this at least 51 per cent of the time.

    PROFESSIONAL: The employee: is licensed to practice law, medicine, dentistry, optometry, architecture, engineering, teaching or accounting; works in (a) a learned or artistic professions that requires advanced knowledge in a field or science acquired by specialized instruction, or (b) works in a recognized artistic field, or (c) works in an intellectual capacity;and does all of this at least 51 per cent of the time.

    Please do not try to decide if your job is exempt or not based on the above summaries; as I said, they are incomplete. It can be a good use of time and money to retain an employment attorney to analyze the details of your employment situation.

    If you are exempt under one of the three exemptions above, as of January 01, 2016, you must be paid the equivalent of at least twice the minimum wage. The minimum wage on January 01 rose to $10,00 per hour. Therefore, you must be paid the equivalent of $41,600 per year ($3,466.67 per month/$20.00 per hour) before the exemption can apply If you are not paid this amount, you cannot be exempt.

    The wages you refer to in your question applies to computer software professionals – not to every employee who works with computers. The duties you listed ("administrative work, I schedule, monitor and trouble shoot video conferencing systems full time") does not sound like you are a software professional, though I could be wrong. If you are a software professional, then as of January 01, 2016, you must be paid at least $41.85 per hour ($87,185.14 per year) or you cannot be classified as exempt.

    If you believe you have been classified as exempt when you should not have been, 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 and unable to find a replacement. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.

    (continued in Comment below)

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  • Should I take the $25,000 or go before the judge? What about challenging the WC QME decision? What about ADA rights?

    I'm 58 and terrified. My employer of 30 years denied my WC claim for CT to my knees but my personal physician states that work aggravated my knee condition in conjunction with my being overweight with type I diabetes. The WC QME said my knee inj...

    Marilynn Mika’s Answer

    I am not commenting on any workers' compensation aspect of your case. I write to make sure 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.

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  • Is it possible to attend a training class at work while on Short Term Disability without jeopardizing my benefits?

    I am on Short Term Disability. My employer is paying for in-house training that will be held before I return. I need to attend this class, but my employer is telling me that doing so would "end my disability". I've read that in CA you can...

    Marilynn Mika’s Answer

    I agree with Mr. Pedersen generally and write to add that many employers do not understand their own short term disability plans well. The first step is to read the plan and see what the definitions are of "disability, "work," and any other relevant term. You can contact the STD plan and ask if you can attend the class without disturbing your benefits. You may want to point out that the better trained you are, the less likely you are to need disability benefis. As Mr. Pedersen indicated, the STD plan's response might be based on what your disabling condition is . . . and also what your job is and what the training entails. You would benefit from written approval from the STD plan so you can show your employer that it is okay for you to attend. Of course, you do not want to "show up" the employer by proving it was incorrect. Most employers do not take kindly to challenges of any kind by an employee. However, you may be able to finesse this after getting approval, if you do, by explaining to the employer how interested you are in the job, how disappointed you were to learn you could not attend the training, and further that you are so committed to your job that you took the extra step of seeing if you could show the STD plan that the training was beneficial.

    Good luck with your recovery and getting to go to the training!

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  • Is the above section of writing generally enforceable? How does this survive the contract which either side can terminate?

    I am a contract employee and am employed with a company SUPPLIER. I am currently on an engagement with a company XYZ. There is a section of my employment contract that specifies: Limitation of employment with clients Unless approved by SUP...

    Marilynn Mika’s Answer

    California law disfavors and almost never enforces non-competition provisions. The very rare instances when a non-compete is enforced are miles removed from your situation. However, that is not the end of the story. There may be other provisions in the contract that limits you in other ways, or that limits any future employer. The only way to know is to retain an experienced employment law attorney to review the entire contract as well as the circumstances of your engagement with the company. At the same time, the attorney can and should review whether or not you were truly an independent contractor under the law or if you were an employee who was entitled to many benefits of employment. In this regard, please see my guide detailing which workers are employees and which workers are independent contractors: http://www.thespencerlawfirm.com/tslf-ic-vs-ee.php.

    For this type of assistance, you can expect 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.

    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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  • Under Bus. & Prof. Code section 17208, an employee may go back four (4) years on his claim for missed meal & rest periods?

    Labor and employment law question regarding meal and rest periods. Under Business and Professions Code section 17208, an employee may go back four (4) years on his claim for missed meal and rest periods?

    Marilynn Mika’s Answer

    Yes, an employee can sue to recover for missed meal and rest periods up to four years in the past under the Business and Professions Code if the employee alleges the employer's failure to provide these breaks were due to the employer's policies. Of course, it's more complicated that that. There are issues of whether the employer allowed or did not allow the breaks, encourage or discouraged the breaks, interfered with or did not interfere with the breaks, etc. There will be issues of proof, record keeping, and more.

    Whether you are the employer or the employee in this situation, you need an attorney. If you are the employee, you should be able to find an attorney to represent you on a contingency basis (where you pay no fees up front and the attorney is compensated by a percentage of any recovery) or perhaps an attorney who will accept the case and agree to get fees from a fee-shifting provision in the relevant law. Even if the amount of our claim is relatively low, an attorney may be helpful in recovering your damages far more quickly than the government agency that handles these cases (the Labor Commissioner aka the Division of Labor Standards Enforcement).

    If you are the employer, you should have a business attorney with whom you can discuss your potential liability and the most reasonable method to defend the case. Note that because the law is fairly clear in this area, the "most reasonable method to defend the case" often means settling it.

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  • What do I need to do now in case I get fired later out of retaliation? Is retaliatory behavior unlawful?

    Retaliatory behavior & possible firing: I work at a large company and our policy is to inform your current manager if you plan to look for another position within the company. When I did, my manager reacted very badly, yelling and threatening me s...

    Marilynn Mika’s Answer

    As a representative of the company, HR ought to have an interest in making sure the company's policies are followed without retaliation or other negative result. Of course, HR's biggest job is to protect the company. If HR and/or management formed the opinion that you are disloyal, more trouble than you are worth, or anything other than an employee who is reliable in all ways, HR will do whatever it takes to benefit the company.

    With this in mind, think about a strategic solution. If you have not (yet) been fired, try hard to prevent that; convincing an employer to reverse an action already taken is difficult.

    Consider tackling this directly, professionally and respectfully. Approach your manager (and HR, separately) and let him (and HR) know you meant no disrespect. You were following a path that you understood the company favored. A mature conversation may change the way the manager treats you.

    Whatever you do, don't challenge the manager's (or HR'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.

    Do not blame anyone else even if you believe someone deserves it; this cannot help you. Only talk about yourself.

    Management and the company may see you more favorably after this. Even if it doesn’t save your job, it may prevent a fight about unemployment and might get you a good job reference.

    I know it's annoying to have to do this when you didn't do anything wrong, but remember, an employer doesn't need a reason to fire you. And as we all know, the current economy is tough and jobs are hard to come by.

    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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  • How should I deal with this.

    I have Anthem Blue Cross. My doctor has submitted two detailed reasons for my back surgery and both have been denied. I have to take way to many pain killers just to function. I now have to file a grievance. I am union and trying to figure thi...

    Marilynn Mika’s Answer

    I practice employment law and not insurance or even personal injury law, but as I represent clients with disabilities in employment disputes, and as my practice area sometimes overlaps with workers' compensation law, I see the same issue come up fairly often. Many plans have an appeal process, second opinion process, or something similar. Many of the Blue Cross plans I've seen have such an option, though I have seen some that do not. If your plan does, then certainly follow that procedure. Your physician can be very helpful in navigating the medical issues, provided he has enough time to do so. His staff may be helpful, too.

    I'm not sure what your union could do about this. Unions negotiate with an employer to provide a plan and a level of coverage but do not negotiate the details or the quality of the plan. However, if your medical is provided by a plan with employer and union trustees, there is sure to be an appeal process.

    I am sure you are correct that cost is an issue. Insurance companies exist to make a profit. They do not exist for the good of their insured, but instead for the good of their shareholders. This is precisely why many people, including me, prefer government-provided medical plans – to remove the profit motive. When you vote in the next presidential election, I urge you to consider the candidates' positions on health care and whether each candidate is pro-business to the exclusion of human rights.

    In the immediate, if you cannot find an appeal or second opinion provision in your plan, ask. Do it in writing and keep a copy of your request and the insurance company's answer. You never know what will be needed. If you learn there is absolutely no alternative, you will probably have to retain an attorney who works in this area on the side of the insured. I don't know what kind of attorney this is but personal injury attorneys may be helpful because they deal with insurance companies on a regular basis.

    You might also explore the issue with the California Department of Insurance.

    I hope you find a resolution to this. Living in pain is horrible.

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