Archive for August, 2013

Unpaid Overtime Claimed for Time Spent in Security Searches

August 5th, 2013 No comments

To my beloved readers reviewing these most humble posts on your i-pads, or i-phones, or i-anythings, I am sorry, but I have some bad news about your beloved Apple.  It appears that a couple of former Apple retail employees have sued Apple, alleging that they were forced to clock out for their breaks, then wait 5-10 minutes in  line while security checked their bags for stolen goods.

Although a good and loyal employee would not begrudge his or her employer a mere 5-10 minutes, if we average 7.5 minutes per break, that’s 15 minutes per day, or 1.25 hours per week, or 62.5 hours per year (assuming a 2-week vacation).  If you’re already working the 40 hours per week, that extra 62.5 hours per year is technically overtime, so we’re looking at 93.75 unpaid regular hours per year, with interest.

Now, we don’t know if any of this is true, but this isn’t the first time (or second time; or third time; or fourth time) that Apple has made news for questionable labor practices.  Assuming it is true, this theory should affect workers’ compensation benefits as well.

After all, there may be several activities employers require of their employees which are off the clock, but would factor into benefits.  What are your employee’s average weekly wages?  Does that include overtime?  What about the overtime the employer should be paying but isn’t?

After all, unless we’re dealing with a self-insured employer, it’s the insurer or the group that’s going to be paying out more benefits than are accounted for in the premium.

There are plenty of seemingly innocent activities that might fall into this category (and no, applicants’ attorneys, I’m not going to offer any suggestions – you have to figure these out for yourselves).  Employers should be aware of these and be careful that they’re not saving money on the time-slip just to pay it back double on the workers’ compensation premium and labor violations down the road.

Your humble blogger is by no means sympathetic to these ridiculous claims – people should be able to contract as they like.  But your humble blogger can only reside in fantasy land for so many days out of the year, and must, woefully, maintain his residence at 123 Reality Road.  The law is the law, and employers need to be wary of underpaying employees; insurers need to be sure that their policy holders aren’t underreporting, directly or otherwise, the wages of their employees.

This Apple lawsuit highlights the fact that under-reporting can take many forms – just like the legal determination that an independent contractor is actually an employee, the finding that what was off-the-clock time is actually on-the-clock time can quickly inflate liability for everyone on the defense side of the room.

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Workers’ Comp Imitates Lord of the Rings

August 2nd, 2013 No comments

Some of my beloved readers know that their humble blogger is a big fan of the good Mr. Tolkein, and his masterpiece, The Lord of the Rings.  Naturally, it’s not uncommon for this humble blogger, in an effort to maintain his sanity, to amuse himself by comparing scenes from the workers’ comp world to those of the world of Middle Earth.

Well, behold, dear readers, this news: several lien claimants have filed a federal lawsuit seeking to enjoin the enforcement of the provisions of SB-863 imposing lien activation fees on liens filed prior to January 1, 2013.  This same scene was depicted in Lord of the Rings…

Just to clarify – yes, the lien claimants (Saruman) have an evil hold over the workers’ compensation system (Theoden), and Gandalf (SB-863) is desperately tries to break the lien claimants’ hold.  In fact, at one point, the lien claimants even promise to take the workers’ comp system with them.

The lawsuit argues that the $100 fee is unconstitutional under the Takings, Due Process, and Equal Protection Clauses of the United States Constitution.

One of the gripes expressed in the lawsuit is the fact that many of the liens are for a few hundred dollars or less, which makes a $100 activation fee particularly harmful.  Yeah right!  The real gripe is that now the $100 prohibits meritless liens from extorting money from the defendants.  After all, SB-863 allows for reimbursement of the lien claim under Labor Code section 4903.07 if the lien claimant makes a demand for settlement that is equal to or less than the award after a trial.

So in other words, if your lien claim has merit, and you offer to settle for the value of your lien or less, you will get the activation fee back, with interest.  If your lien claim is frivolous and your only means of recovering is by threatening scorched earth (I have had lien claimants tell me that it would cost the defense more in billables than to just pay the lien), then, really you don’t have a valid lien, and you’re just looking to have a wrongful hold over the noble people of Workers’ Compia.


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