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NEW DOL EXEMPT EMPLOYEE SALARY RULE

The U.S. Department of Labor (DOL) has adopted a final rule which changes the salary requirement for exempt employees. Previously under federal law an employee who otherwise meets the duties requirements for exempt status had to be paid an annual salary of at least $23,660. The new rule requires an annual salary of at least $47,892. Based on this new rule employers will need to ensure that all exempt employees meet this minimum salary requirement.

Under the federal requirement employers can add nondiscretionary bonuses to meet the required salary level but only up to 10% of the salary. This rule was expected to go into effect on December 1, 2016.

On November 22, 2016, a Texas district court issued a preliminary (temporary) injunction which enjoins DOL from implementing or enforcing this rule on a nationwide basis pending a further decision by the court. Thus, the new salary requirement cannot currently be enforced by the DOL.

What this means for you:

1) While the change in the federal salary requirement will not go into effect immediately, this could change if the further order of the court upholds the DOL final rule. While it is unlikely that this ruling is imminent, it is possible that the court could uphold the final rule and make it retroactively effective as of December 1, 2016. Alternatively, if the court does not uphold the final rule employers will not need to make any changes in salary based on a new federal requirement. Given the court’s language in the current decision it appears that the court may find that the DOL exceeded its statutory authority in setting the salary requirement and subjecting it to automatic updates.

2) Contrarily, California employers presently must meet the salary requirement under state law which is twice the state minimum wage. Thus, the current California annual salary requirement is $41,600 but this will increase to $43,680 when the new statewide minimum wage ($10.50 per hour for employers with more than 25 employees) goes into effect on January 1, 2017. Furthermore, under California law bonuses may not be included in determining the salary for the exempt employee.

If you have any questions or require additional assistance please contact GMK employment law attorney Jeanne Flaherty at 818-755-0444 or jflaherty@gmklaw.com.

The Statute of Limitations is Alive and Well: The WCAB Has Rejected the Applicant’s Petition for Reconsideration of A “Take Nothing” Obtained by GMK

The WCAB has recently affirmed a “Take Nothing” issued by the San Diego Presiding Judge where the Statute of Limitations was asserted as an affirmative defense.

The Applicant, ironically a workers’ compensation defense attorney, initially mentioned to her employer that she was having back complaints but also that she had no intention of filing a workers’ compensation claim. A couple of months later, however, she informed her employer that she would like to “designate” a treating physician.

The employer immediately provided the Applicant with a Claim Form. The Applicant did not sign or return the Claim Form to the employer. However, the employer reported the potential claim to its workers’ compensation carrier which conducted an inquiry and promptly issued a denial letter.

Following her departure from that employment and then after working for another law firm as a defense attorney for another year the applicant chose to litigate a claim against her first employer and filed an Application for Adjudication nearly 1½ years after the DWC-1 had been provided to her and her claim was denied.

The Defendant raised the Statute of Limitations (Labor Code §5405) which gives the employee one year from the date of injury within which to file the Application. The Applicant argued that the Statute of Limitations should be tolled for the period that the Applicant treated through her private health insurance. The Applicant was pursuing two years of Temporary Disability and was requesting back surgery.

The Trial Judge indicated in his Opinion that the Applicant had “carefully weighed the pros and cons and made an informed decision not to assert a legal claim” which could have been done so timely. The Judge further concluded that a timely-filed claim would have provided an “incentive and opportunity” for a full investigation, and that her waiting until nearly 1½ years later to pursue the claim resulted in “more complex legal and factual issues for discovery and for medical/legal determination.”

The Judge also added that “[t]he law favors the prompt reporting of work injuries by employees (Labor Code §5400), and the prompt investigation of work injury claims by the employer (Labor Code §§5401, 5402). When the employer provided [the Applicant] with a claim form, and [the insurer] provided notice of her rights, the statute of limitations to file a legal claim was triggered. Having met its statutory obligations, the employer is entitled to the finality the statute of limitations is intended to provide.”

Upon Reconsideration the Board adopted and incorporated the ruling of the Trial Judge in denying the applicant’s appeal.

What This Means For You:

It is important to keep in mind that an Applicant is responsible for timely pursuing a workers’ compensation claim. Here, the untimely filing of an Application for Adjudication of Claim following the employer’s timely denial of liability proved to be fatal to her ability to pursue benefits before the WCAB.

This matter was litigated by Terence Tungseth, a Senior Associate Attorney in GMK’s Brea Office who has been with the firm for nearly fifteen years.

NEW MANAGING ATTORNEY IN SACRAMENTO OFFICE

Marc Borenstein, Associate in GMK’s Los Angeles Office has been appointed Managing Attorney of GMK’s Sacramento Office.

Marc graduated from Yeshiva University in 2005 with a Bachelor of Arts degree, and received his Juris Doctor degree from Loyola Law School, Los Angeles in 2009. Marc began his career at Goldman, Magdalin & Krikes, LLP in 2010 in our Los Angeles Office. He currently represents employers, self-insureds and insurance carriers in all aspects of Workers’ Compensation defense.

Marc is a frequent speaker at GMK’s Annual Seminar and will participate at both the Claremont and San Diego Seminars this year.

We congratulate Marc on his move to the Sacramento Office and this exciting opportunity for Marc and GMK.

NEW PARTNERS AT GMK

Goldman, Magdalin & Krikes, LLP is proud to announce 6 new Partners in the firm - Robert Choi, Sherian Lynch, Jeremiah Heisler, Abel Calderon, Jeff Soll and Danny Barwald.

Robert Choi - Robert is the Managing Partner in the Orange County Office. Prior to joining Goldman, Magdalin & Krikes, LLP in 2013, Robert worked with the State Fund of California as the Deputy Chief Counsel in charge of all Workers' Compensation litigation within the Orange County region. Robert also oversaw State Fund's Appellate and Complex Legal Units. Robert is a certified specialist in Workers’ Compensation.

Sherian Lynch - Sherian is a Partner in the Orange County Office. Before joining Goldman, Magdalin & Krikes, LLP, Sherian worked as defense counsel representing insureds, self-insureds, government agencies, and school districts in all aspects of workers’ compensation. Sherian has been with GMK since 2012 and is a certified specialist in workers' compensation since 1999.

Jeremiah Heisler - Jeremiah is a Partner in the Los Angeles Office. Jeremiah has worked for Goldman, Magdalin & Krikes representing insureds, self-insureds, government agencies and school districts since 2010. Jeremiah is a certified specialist in workers’ compensation.

Abel Calderon - Abel is a Partner in the Glendale Office. Before joining Goldman, Magdalin & Krikes, LLP, Mr. Calderon was a lien representative for several years handling appearances before the WCAB. Since joining GMK in 2010, Abel represents insureds, self-insureds and has worked on special projects for lien resolution. Abel is a certified specialist in workers’ compensation.

Jeff Soll - Jeff is a Partner in the Los Angeles Office. Jeff heads GMK’s Liability Defense and Subrogation Department. Jeff worked as in-house counsel for Zenith prior to coming to GMK in 2011.

Danny Barwald - Danny is a Partner in the Los Angeles Office. Danny has extensive experience defending worker’s compensation cases since 1991. Most of his defense work has been as outside counsel where he has represented self insured employers, high deductible employers, and insurance clients. Danny joined GMK in 2013. He is a certified specialist in workers’ compensation.

GMK welcomes its newest Partners to the firm. We look forward to a long professional and committed relationship with the firm and our client’s.

SANTA BARBARA POLICE OFFICER SENTENCED FOR WORKERS' COMPENSATION FRAUD

In a case filed against the City of Santa Barbara and defended by Rick Goldman, Jacob Finerty, a 28 year old former police officer, has been sentenced to 120 days in jail, 5 years probation and ordered to make restitution to the City of Santa Barbara in the amount of $115,669.86.

Mr. Finerty claimed to have sustained injury to his head, neck, low back and lower extremity in an on-duty auto accident on 06/05/13. He also claimed that he was unable to perform his usual and customary occupation as a police officer due to the back injury.

During the time he claimed he could not perform the duties of a police officer because of his injuries, our investigation determined that on multiple occasions he was observed lifting heavy weights, engaging in strongman weight lifting competitions and competing in MAS wrestling. He even won the California’s Strongest Man competition in 2015. Many of his competitions were videographed, photographed and posted on social media.

After a subsequent comprehensive investigation conducted by the Santa Barbara Police Department, its findings were turned over to the District Attorney. Officer Finerty was charged with four felony counts of making false oral statements and false written statements for the purpose of collecting benefits.

There was no plea agreement and Finerty pled to the four felony counts on 09/23/16.

WHAT YOU NEED TO KNOW

Although safety officers in California are granted special entitlements pursuant to Labor Code §4850 et. seq., as this case reveals those entitlements do not permit allegedly injured safety officers to engage in activities that belie their claims of injury and disability. While we applaud the difficult and dangerous work that our police and fire men and women do every day, we must be especially vigilant to protect our state, counties, cities and towns from being taken advantage of despite those special entitlements. GMK represents numerous public entities throughout California and we ask that if you see (or suspect) some untoward conduct concerning an applicant in one of your cases, say something.

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