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Marilynn Mika Spencer

Marilynn Mika Spencer’s Answers

7,042 total


  • What should I do? I was not given the option of FMLA

    I work as a home based educator. My duties includes doing home visits weekly with mu clients and providing lessons and materials, going to trainings, and going to staff meetings every Monday. Well, I have been having serious health issues since Se...

    Marilynn Mika’s Answer

    I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.

    There are various sources of POTENTIAL protection related to your medical status.

    If the condition is due to a disability as defined by law, the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) may provide some protection. Please look at my guide to the ADA: http://www.thespencerlawfirm.com/tslf-ada.php. There must be at least 15 employees for the ADA to apply. This law protects you from discrimination (adverse treatment) DUE TO disability and also requires the employer to provide reasonable accommodation (change in the manner in which work is done) so you can do the main parts of the job (essential functions). A leave of absence may be a proper reasonable accommodation. Whether attending the Monday meetings is an essential function of the job would require an analysis of the facts.

    There is limited protection if the illness is caused by a serious medical condition as that is defined by law.You may be protected under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) if all of the following is true: (a) your employer has at least 50 employees who work within 75 miles of one another; and (b) you have worked for this employer for at least one year all together, even if not consecutively; (c) you have worked for this employer at least 1,250 hours in the immediately preceding year; and (d) you, a child, a spouse or a parent, you have a serious medical condition as defined by the FMLA. The FMLA allows employees to take leaves of absence from work repercussion, up to a maximum of 12 weeks per year. Leave can be in increments as short as fractions of an hour.

    Please look at my guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) to see if that law applies in your situation: http://www.thespencerlawfirm.com/tslf-fmla.php. If it does, you may find my guide to the FMLA and intermittent leave particularly helpful: http://www.thespencerlawfirm.com/intermittent-leave-under-the-family-and-medical-leave-act.php

    Employment law is complicated and fact specific. You may wish to consult with an experienced plaintiffs employment attorney in your state. To find a plaintiffs employment attorney in your area, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is www.nela.org, and you can search for attorneys by location and practice area.

    Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing.

    I hope there is a good resolution to this situation.

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  • Can my employer terminate me because I don't yet qualify for FMLA?

    If I am pregnant and just started a new job about 5 months ago. I'll be going on leave in 2 months.

    Marilynn Mika’s Answer

    I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.

    Congratulations on your growing family!

    Pregnancy discrimination is unlawful under federal law. 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; however, if employees are allowed to take leaves of absence for personal reasons or other non-protected reasons, but the employer doesn't allow pregnant employees to take leave, it is possible the employer is discriminating on the basis of pregnancy..

    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 Keep in mind you may have only 180 days to file a charge with the EEOC, unless your state has its own similar law, in which case the filing time is probably 300 days. But you MUST confirm the filing deadline with an attorney licensed in your state.

    Employment law is complicated and fact specific. You should obtain legal counsel before pursing the claim. You may wish to consult with an experienced plaintiffs employment attorney in your state. To find a plaintiffs employment attorney in your area, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is www.nela.org, and you can search for attorneys by location and practice area.

    Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing.

    I hope there is a good resolution to this situation.

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  • I want to waive my right for union rep. Hire an Attorney, and want to go after employer for wrongful termination, retaliation

    i was a victim of Assault and Battery by an employee at work. I live in California and i work in retail in the meat department at a grocery store. The attack was on video. i was forced to use self defense, my attacker was unprovoked, and over size...

    Marilynn Mika’s Answer

    There are a lot of pieces to your post. First, when employees vote in a union, they are voting to make the union the exclusive representative for everything related to wages, hours, and terms of employment. If the workplace problem falls into one of those categories, only the union can takes steps to remedy the problem.

    For example, let's say the union negotiated a pay rate for your job classification of $20 an hour but the employer only pays you $19 an hour. You cannot sue for the underpayment. This is because the only reason you have a right to $20 is because the union negotiated that pay rate into the contract. There is no statute (law) that gives you $20 dollars an hour. Similarly, suppose overtime is assigned based on seniority; you were the most senior; but the employer offered the overtime to someone else. You only have a right be offered overtime first because of your seniority, and seniority only exists because the union negotiated it. There is no statute that requires employers to have a seniority system.

    And, if you were terminated in violation of the just cause provision in the contract, only the union can take steps to enforce that contract language. Without a union, there is no requirement that an employer have just cause to fire employees. Without a union, an employer can fire an employee even if it is completely unfair and even if the employer is acting on incorrect information. Therefore, if you want to protest your termination because you think the employer did not have just cause to terminate you, your only recourse is to go through the union no law says an employer must have just cause terminate an employee. That right exists only because the union negotiated it.

    Certainly there are statutes making it unlawful to assault or batter a person, and there are statutes requiring an employer to provide a safe workplace. You may have recourse under one or both of those statutes and if so, you can hire a private attorney to pursue them.

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  • Can I be held liable for sharing information with union members if I am no longer a union Member?

    Is there is some sort of protection for sharing information for the mutual support of other members or I don't know if I enjoy that production if I i'm no longer an employee and longer paying dues i'm no longer an employee and longer paying dues ...

    Marilynn Mika’s Answer

    What kind of information are you referring to? What is the source of the information? Are you no longer an employee of the company or is it that you are now a management employee? Or in a job that is not in the bargaining unit (group of workers covered by the collective bargaining/contract)?

    NOTE if you received information under circumstances that are or might be considered illegal, do not post anything here on this public web site.

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  • Does my situation sound like a violation off the ADA in my workplace?

    I am in NC and have an employee rights question. I am a police Sergeant and I filed a complaint with the EEOC for a violation of ADA in my workplace. I was told by my doctor that I needed light duty or a reasonable accommodation of a smaller duty...

    Marilynn Mika’s Answer

    I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.

    Employers are required to provide reasonable accommodation to a Qualified Individual with a Disability (QUID). A QUID is a person with a disability, where the disability meets the definition under the ADA of "a physical or mental impairment that substantially limits one or more major life activities" who has the skills, training, and knowledge necessary to perform the essential functions (main parts) of the job. The person must be able to perform the essential functions (with or without a reasonable accommodation. A reasonable accommodation is a change in how the job is done, but is not a change in the job itself. Minor duties can be reassigned to other employees, but not the essential functions.

    There are two exceptions to the employer's obligation to provide reasonable accommodation. First, the employee must be able to perform the job without being a safety risk to the employee or others. Second, the accommodation cannot constitute an "undue hardship" on the employer. An "undue hardship" is a legal term of art that means providing the accommodation would be so outrageously expensive that it is unreasonable to expect an employer to provide it, or providing the accommodation would be overly disruptive to the employer's operations.

    Of course, all of the above is further defined by decades of case law and regulations.

    If providing you with the reasonable accommodation you sought or another reasonable accommodation that would have been sufficient to enable you to do the job, and was possible and not an undue hardship, then your employer was legally obligated to provide it.

    Please look at my guide to the ADA: http://www.thespencerlawfirm.com/tslf-ada.php.

    Employment law is complicated and fact-specific. Reasonable accommodation and disability law is extremely complicated and heavily fact-specific. I suggest you speak with one or more experienced employment law attorneys with whom you can discuss the details of your situation. 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.

    I hope there is a good resolution to this situation.

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  • What can I do legally regarding this corrupt union

    I have been a member of SAG-AFTRA since 1981, and have, numerous times over the years (when working non-film related jobs) suspected my membership. In 2013 I reinstated my membership, then, as I accepted a permanent position with a company in New ...

    Marilynn Mika’s Answer

    Your post is somewhat confusing. The subject refers to a "corrupt" union but the text only describes a mistake, or at worst, incompetence. In any event, nothing you said indicates corruption. The other confusing thing is that for some reason, you did not know for 1.5 years that the union still had you as an active member. Most non-shop unions send out regular billing statements though I supposed your union could be different. But if it did send out statements, that certainly should have given you notice.

    When you ask "What can I do legally," I assume you are asking if you can take legal action (sue) the union for charging you for past dues. A lawsuit is not likely to bring you any relief because unions have a legal right to be negligent. No law requires them to operate perfectly or even efficiently. 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.

    Further, even if you had a viable legal claim, I cannot imagine any attorney taking the case on a contingency. The attorney's fees and costs of suit you would have to pay for legal services would far exceed whatever amount you owe in back dues. Additionally, very few attorneys sue unions.

    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.

    Another possibility is to look at the union's by-laws and see if there is any type of charge you can file internally. Not likely, but it's possible.

    In sum, I agree with Mr. Pedersen that your best course of action is to pay the arrears and chalk it up to (an expensive) experience. You can still contact the Board of Directors and explain what happened, and you may be able to get a refund or partial refund. If you do this, I urge you to be polite and respectful, describe what happened as a mistake (not corruption), and ask for assistance.

    Good luck.

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  • Is my employer in violation of the ADA or any other part of the law? Trying to modify established workplace accommodation.

    I have had an established, documented reasonable accommodation with my employer for the past 15years due to a severe on the job injury that occurred 15 years ago resulting in my receiving a permanent partial disability. I can perform my original j...

    Marilynn Mika’s Answer

    I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.

    I have a different approach to this situation than Mr. Meisenhelder. You've been with this employer for a long time, obviously more than 15 years. You've had an accommodation for a decade and a half. I wouldn't risk a long-term job or my health by waiting for the employer to take away an accommodation, especially since it's indicated an interest in getting rid of your accommodation. It is always easier to prevent an employer from taking an unwanted action than it is to get an employer to change its mind after it already stuck its neck out.

    You might involve HR, but keep in mind that HR works for the employer, not for the employees. It's not neutral, and its job is to help the employer do what it wants to do.

    If HR is not immediately supportive and does not immediately take action to preserve your accommodation, I would suggest you hurry up and get an attorney (and you might want to skip the HR step and go straight to an attorney). The reason for the attorney is to get help preserving your right to reasonable accommodation. This may involve nothing more than a letter or even phone call to the employer, but more likely it will involve the attorney working with your physician to prepare an appropriately detailed medical letter to establish your need for reasonable accommodation.

    It's likely you will need to pay the attorney by the hour for this help. It might be expensive. But losing your job is a lot more expensive, so hopefully you can gather the funds to get this help.

    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. I urge you to search for an attorney with substantial experience in reasonable accommodation and the ADA.

    I hope there is a good resolution to this situation.

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  • Can I use FMLA to take time off from work for a surrogate transfer (1 week) and screening appointment (1 day)?

    I am going to be a surrogate for a family from China who is using a doctor in San Francisco. I am based out of Illinois. I will need to take 1 day off in the beginning to fly out to San Francisco for a screening and then will need to take a week...

    Marilynn Mika’s Answer

    I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.

    I doubt the FMLA will help you, though I admit I have not researched your particular issue. The FMLA is designed to protect the rights of employees who personally have a serious medical condition as defined by the FMLA, or who has an immediate family member (spouse, child or parent) with a serious medical condition.

    Please look at my guide to the FMLA for a better understanding of these rights: http://www.thespencerlawfirm.com/tslf-fmla.php.

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  • Can they apply disciplinary actions leading up to my termination for absences employer designated as FMLA for any reason at all?

    Employer disciplined me for designated FMLA absences that were docked from my Intermittent FLMA Hours Bank, (some days they gave me a disciplinary action 2 months after the designated FMLA absence). Disciplinary actions have led up to my ter...

    Marilynn Mika’s Answer

    I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.

    Employment law is complicated and fact-specific. This response is based only on the brief information available in your post.

    An eligible employee is entitled to leave up to a total of 12 weeks “Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. section 2612(a)(1)(D).

“FMLA leave may be taken ”intermittently or on a reduced leave schedule“ under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason.” 29 C.F.R. section 825.202(a); 29 U.S.C. section 2612(b)(1).

    The Code of Federal Regulations provides this example: 

“(1) Intermittent leave may be taken for a serious health condition of a parent, son, or daughter, for the employee’s own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.” 29 C.F.R. section 825.202(b)(1).

    This same section also states that intermittent leave “shall not result in a reduction in the total amount of leave to which the employee is entitled under subsection (a) of this section beyond the amount of leave actually taken.” 29 C.F.R. section 825.205(b)(1); 29 U.S.C. section 2612(b)(1).

    What the section above means is that the employee is entitled to 12 weeks of leave [per subsection (a)] and can only be charged with FMLA leave for the exact amount of time the employee is out on leave. For example, if the employee’s physician certifies the employee needs intermittent leave from January 01 to February 28, and the employee takes leave for 6 hours on January 14th, 8 hours on January 23rd, 3 hours on February 03 and 8 hours on February 20, the employer can only subtract 25 hours [6 + 8 + 3 + 8 = 25] from the employee’s 12-week leave entitlement. The employer cannot subtract the 59 total days from January 01 to February 28. 

The FMLA specifically states that certification is sufficient if it provides:

    
(1) the date the serious health condition began;
    
(2) the probable duration of the condition [which could be lifelong or permanent];
    
(3) the required medical facts [note this does NOT require a diagnosis];
    4) a statement the employee is unable to perform the functions of the position of the employee [due to the serious medical condition]; and
    
(5) “a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule, and the expected duration of the intermittent leave or reduced leave schedule.” 29 U.S.C. section 2612(b)(6).

    (continued in Comment below)

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  • How do Union members remove the Executive Director when the Union won't share members contact info to make this our Union again?

    The Executive Director of the Union I belong to has been making it difficult if not impossible for members to have any say in how the Union is being run. Most recently he has been making 'emergency' executive decisions, withholding information th...

    Marilynn Mika’s Answer

    The following is an overview only. Everything mentioned includes many, many additional steps and details.

    There are a few options. First, the executive director is an employee of the union and reports to the union's highest officer or the executive board. You can speak to the officer about this and see if he or she appears sympathetic. If not, or if nothing changes, you can prepare a petition to the officer or exec board about this, and gather as many signatures as you can before submitting it. You have a legal right to do this under the National Labor Relations Act and the Labor-Management Reporting and Disclosure Act. If these options do not work, or simultaneously, IF the exec director is also a union member (often required by an exec director's employment contract), then you can review your union by-laws and see if there is a method to bring charges against the exec director. That procedure must be followed perfectly. Finally, if none of that works, then your recourse is to vote the union's highest officer or exec board out of office and vote in a slate that will act more to your liking.

    NONE of this is easy to accomplish. You may need professional help or you may be able to handle it without that help.

    Good luck!

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