Answers Posted By Marilynn Mika Spencer

Answer to Can I collect Vacation hours while collecting Disability insurance while on maternity leave in California?

It might depend on what kind of disability pay you are referring to, as well as what your employer's vacation policy entails. Have you asked your employer the reason you cannot collect both?

Also, 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.

posted Jan 16, 2016 11:10 PM [EST]

Answer to Terminated for assisting another employee with claim.

If the "putting hands on" event was or might be related to sexual harassment or sexual assault, it would be illegal to retaliate aganst you for assisting the other employee. Your right to participate in such activity is protected by the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) and Civil Rights Act of 1964, Title VII 42 U.S.C. §§ 2000e to 2000e–17.

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.

posted Jan 16, 2016 11:06 PM [EST]

Answer to I am being laid off from my job after 15 years of employment. they are giving us a severance packge they have also said they are looking to make a position for me but i do not want to take the position in another department can they not pay the severance

Severance packages are not required by law, so they are a benefit offered by an employer under a contract theory. For this reason, an attorney would have to look at the terms of the severance package to know the answer to your question.

posted Jan 16, 2016 11:02 PM [EST]

Answer to my employer owes me for expenses and my consulting fees that are 2 years old can i still recover them

In California, you have three to four years to file a wage claim for unpaid wages and unreimbursed employment expenses. You can pursue a claim for these unpaid wages by:

(1) Filing a wage claim: The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm. You will be able to collect unpaid wages for the past three years counting from the date you file. The advantages of this method is that there is no cost to you whatsoever and some employers are very responsive to a government claim. The disadvantages are that if you use your own attorney to assist you in this process, you are responsible for paying the attorney's fees; it can take a very long time to resolve the case because the DLSE is underfunded and understaffed; you "lose" the opportunity to collect the fourth year of unpaid wages; and the DLSE often puts pressure on the claimant to settle with the employer for less than the claim is worth.

(2) Retaining an attorney: An attorney can negotiate a resolution with your employer or, if that is not possible, can file a lawsuit in court to collect these unpaid wages. The attorney can pursue the past four years of unpaid wages, again counting from the date you file the lawsuit. The advantages of this method include that you can collect four years of unpaid wages; assuming you are successful in your lawsuit, the court must order the employer to pay your attorney's fees and costs; and the case can be resolved very quickly if the employer responds to your attorney's negotiation overture. The disadvantages are that if negotiation is not successful, it can take up to two years to resolve the case in court because the court is underfunded and many courtrooms are closed. Also, the court may not award the full amount of attorney's fees incurred and, depending on your legal services agreement with your attorney, some of the attorney's fees may be paid from your award; if the case is negotiated, it will certainly be settled for less than the full value because no employer settles for the same amount it would have to pay after litigation. Finally, court records are open to the public and any future prospective employer is able to learn about your suit against this employer, which may affect whether the prospective employer hires you.

(3) Filing a claim in Small Claims Court if the amount owed is less than $10,000. The advantage is that the process is faster than court litigation. The disadvantage is that you cannot have an attorney or any other representative. While the employer cannot have an attorney or representative either, it can assign a sophisticated employee representative who has been through the process many times, or who has been trained by an attorney, which may leave you disadvantaged.

If your claim is substantial, it is usually a good idea to retain an attorney and try to negotiate a settlement. You can pursue the most wages this way – four years – and receive the benefit of the attorney's experience. You can avoid a public record, potentially. And of course the other reasons mentioned.

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.

Marilynn Mika Spencer
San Diego

posted Jan 16, 2016 11:00 PM [EST]

Answer to Can I work for a competitor in CA if my co. Is in FL?

If you are a California employee – working for a California employer and performing work in California – you should be fine under California law, but without knowing the terms of your agreement with the Florida company, any choice of law provision in your hiring agreement, and some other factors, it is impossible to know. The safest thing is to retain an experienced attorney to analyze your situation in detail. For this type of assistance, you can expect to pay hourly.

If the product or service you sell is high-end, or if the German company is trying to break into the California market, or for some other reasons, you might be able to get the German company to pay for this analysis.

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.

posted Jan 16, 2016 10:57 PM [EST]

Answer to I worked for a company and never signed a non compete agreement. I recently quit because and have started my own business in the same field. The owner of the company I used to work for has stated to me that he is going to sue me. I am not sure for what???

None of the attorneys here know what your former employer might sue you for, either. Sometimes former employers sue for theft of intellectual property/trade secrets, which MIGHT include customer-related information. You might have signed an agreement in which you promised not to solicit employees of the employer's business. But non-compete agreements are not enforceable in California, so there's no need to worry about that one.

posted Dec 23, 2015 12:54 PM [EST]

Answer to My company is forcing me to do unethical things, can I quit and receive unemployment benefits.

Respectfully, I do not agree with Mr. Itkin. He may be correct, but there isn't enough information in the asker's question to know for sure, and there is strong indication that the asker might qualify for benefits.

The California Employment Development Department (EDD) and the Unemployment Insurance Appeals Board (UIAB) generally defines "good cause" for a voluntary resignation as a situation that would cause a reasonable employee in the employee's shoes to resign. When an employer violates the law with respect to paying wages, UIAB has found the employee has good cause to quit.

In this instance, if "they bounce my paycheck or pay late," the employee is forced to work under circumstances that violate the California Labor Code and the Wage Orders. Perhaps if the employee's paycheck bounced once a long time ago, and perhaps if wages were paid late by one day, one time, a long time ago, then there would not be good cause to quit. We don't know that here. The phrasing of the asker's question indicates the pay problems are a repeated occurrence. If that is true, the asker may indeed qualify for benefits. But there isn't enough information in the question to make that call.

Additionally, an employee is not required to work under most illegal or immoral circumstances, even if the employee is not personally affected. For example, suppose an employee works at a workplace replete with racial discrimination. Perhaps the employee is not of the race that suffers the discrimination, but has to see it and remain silent about it every day. Is an employee required to work under such conditions? I don't believe so. Perhaps it is a matter of degree, but it's hard to argue that a little bit of illegality is okay.

Also, it isn't clear whether the asker is or is not personally affected. The asker is in charge of recruiting new students, and past of any student recruitment these days involves student loans. The asker may well be required to mislead or lie to potential students as a condition of employment.

The EDD and the UIAB require an employee to try to resolve intolerable working conditions before resigning. But in a situation where there is institutional illegality that appears part of the employer's business methodology, such efforts would be meaningless. An employee is not required to engage in futile efforts to get an employer to pay attention to the law.

Finally, if the asker is required to work without being paid as required, then the employee may have a valid claim for constructive discharge, which is equivalent to being fired. The asker may actually have a claim for far more than just unemployment benefits.

In short, I suggest this asker speak with one or more experienced employment law attorneys with whom he or she can discuss the details of this situation. There appears to be a lot to discuss.

Marilynn Mika Spencer
San Diego, CA

posted Nov 21, 2015 2:45 PM [EST]

Answer to Company was bought out. Received an offer to work for this new company but might not want to take it

There is no way to provide you a complete answer here on this web site. The MEL board is not set up to handle the kind of detailed analysis that is needed to offer helpful guidance. MEL works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone can read the discussions on MEL so they are not confidential. The employer or whomever is involved in the dispute can read everything written here. You may want to consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation.

I cannot address your question about signing the form; it might depend on what the form says, and I haven't seen it.

Regarding unemployment benefits, generally: Employees who voluntarily quit their jobs due to a decrease in pay are eligible for unemployment benefits if the pay cut was large enough. In Bunny’s Waffle Shop v. California Employment Commission (1944), 24 C. 2d 735, 151 P. 2d 224, the court found an employee who suffered a 25 per cent pay cut was eligible for benefits. According to the Unemployment Insurance Appeals Board (UIAB), an employee who quits due to pay reduction of 20.96 per cent is eligible (UIAB Precedent Benefit Decision No. P-B-124). However, a pay decrease of approximately 11.2 per cent is not sufficient BY ITSELF to merit unemployment benefits (P-B-88).

According to the UIAB, a 15.4 per cent and a 17.5 per cent wage reduction MIGHT BE good cause to quit (and therefore allow unemployment benefits) if there are other factors (P-B-127). If the pay cut is due to a transfer, the UIAB will consider: (1) The comparative skills of the two jobs; (2) Whether the employee had ever worked in the department to which he was being transferred; (3) The length of time he had worked in the job from which he was being transferred; and (4) Whether the employee had a reasonable belief that he would be recalled to the job from which he was being transferred in a reasonably short period of time (P-B-127).

In UIAB P-B-88, the UIAB stated “A review of our decisions makes it apparent that no justification exists for any presumed rule of thumb that a reduction in wages of ten percent is not good cause for leaving work but anything over ten percent is good cause without reference to the other factors presented in the particular case." In that decision, the UIAB listed some of the factors other than wage reduction which bear upon decisions under various circumstances:
1. The claimant’s prospects for securing other work at a wage commensurate with his prior earnings;
2. Whether the claimant was aware of the labor market as it affected him;
3. The comparative skills required;
4. Substantial prospects of other employment based upon objective facts known at the time of election;
5. The distance and cost of commuting;
6. Loss of seniority and recall rights;
7. Opportunities for advancement in the lower classification.

You can find much more information about resigning due to a pay decrease on the Employment Development Department web site here:http://www.edd.ca.gov/uibdg/Voluntary_Quit_VQ_500.htm.

posted Nov 20, 2015 11:12 AM [EST]

Answer to I work for black angus and they recently started cutting back our shifts because we are not selling one gift card per shift. Is my employer allowed to do that?

It seems self-defeating because it is even harder to sell a gift card if your shifts are shorter, giving you fewer customers as potential buyers.

Regardless, no matter how ill-advised the practice is, it sounds legal, based only on your brief description. Employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

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

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.

posted Nov 20, 2015 11:08 AM [EST]

Answer to I work for a CA state agency, have been employed for state for over 25 years and have been at my current agency almost 9 years. Shortly after starting here a co-worker started bullying me and turning the manager and other staff against me. It escalated fr

I will send you a private response.

posted Nov 18, 2015 2:33 PM [EST]