Q. What should I do if I am injured at work?
A. First, tell your supervisor as soon as possible. Next, call Hanna Leung PLC, your source for legal representation at
Q. Why do I need legal representation?
A. Workers compensation claims can be very complex. Attorneys can help you navigate the system, keep track of deadlines, handle disputes, recommend additional resources, and act as your advocates. They can help you prove your case if your claim is denied or your benefits are disputed. If you feel you are being treated unfairly by your employer or your employer’s insurance company, the Law Offices of Hanna Leung PLC will fight to protect your rights, ensuring that you know all of them and that you are getting all the benefits to which you are entitled. In most cases, representation by an attorney leads to the best result and the highest settlement.
Q. How does my attorney get paid?
A. Attorneys receive a percentage from your disability award or settlement. California law prohibits attorneys from charging any injured worker a consultation or “up front” fee. Call the Law Offices of Hanna Leung PLC at 800-373-7320 to set-up your free legal consultation.
Q. What benefits am I entitled to through workers’ compensation?
A. Workers’ comp insurance provides five basic benefits:
- Medical Care – Reasonable medical expenses associated with the injury.
- Temporary Disability (TD) – Payments to compensate for lost wages while you are recovering.
- Permanent Disability (PD) – Payments to compensate for your inability to participate in the general workforce when you have not made a complete recovery.
- Supplemental job displacement voucher – There can be amounts of money available for retraining.
- Death Benefits – Payments to the family or dependants of a worker who dies due to a job-related injury.
L.C. Section 132(a) Serious and willful misconduct – There can also be additional benefits awarded when employers engage in discrimination, including termination, or when the employer creates a hazardous condition of workplace.
Note: Workers’ compensation benefits are generally not subject to state or federal income taxation.
Q. What is covered under Workers’ Compensation?
A. All injuries suffered from employment are covered under Workers’ Compensation. If an injury is caused by a third party, you may have a separate civil claim. Hanna Leung PLC will analyze your situation and enable you to file the correct and necessary cases. Covered injuries include:
- Specific/traumatic injuries – Injuries resulting from a single incident (e.g., falling off a ladder).
- Cumulative/continuous trauma – Injuries caused by repetitive motion or strain, such as working on a computer resulting in carpal tunnel syndrome, constant heavy lifting straining your back.
- Sickness caused by harmful exposure – Illness or disability caused or made worse due to work conditions, such as chemical inhalation, prolonged exposure to asbestos.
- Emotional/stress injuries – Depression, anxiety or other mental conditions from work related causes.
Q. Why was my claim denied?
A. Workers’ compensation claims are denied for many different reasons – because you did not report the injury, because you have not responded to questions about your injury, or just because your employer does not want to notify its workers’ compensation insurance company about your injury. If you have legal representation, the chances of your claim being denied are greatly reduced. If your claim has been denied, you should seek legal representation immediately.
Q. My claim was accepted, but the medical treatment I need denied. Why?
A. Often, injured workers are referred to medical professionals who work in the interest of the employer’s insurance company and will not prescribe the treatment you need. You have the right to choose your own doctor. Never rely on the insurance company to select the doctor for you. The Law Offices of Hanna Leung will help you find the right doctor for your needs – one who will fight to get you all the treatment you need to recover and to relieve your pain. Assist in asserting your rights through the new Independent Medical Review (IMR) process.
Q. What if my employer does not have Workers’ Compensation Insurance?
A. All employers in California are required to have workers’ compensation insurance. If your employer was illegally uninsured when you were injured, the Law Offices of Hanna Leung can assist you in filing a claim to receive workers’ compensation benefits from the state’s Uninsured Employers Benefits Trust Fund (UEBTF).
Q. How can my case be resolved?
A. Workers’ compensation cases are resolved by settlement between the injured worker and insurance company or by way of a decision from a workers’ compensation judge – Stipulations with Request for Awards (STIPS) with lifetime reasonable medical treatment pay by the insurance company or a Compromise and Release (C&R). There are two ways of settling:
1. Stipulations with Request for Award (STIPS)
- a. Payments – Permanent disability payments are paid in one lump sum or can be paid every 14 days until the total amount that was calculated in your Permanent Disability Rating has been paid.
- b. Future Medical Expenses – Insurance companies pay for any reasonably necessary future medical care related to your injury.
- c. Right to Reopen Your Case – If your injury or illness gets worse, you have the right to reopen your case within five years of the date of your injury.
2. Compromise and Release (C&R)
- Payments – Permanent disability payment is paid in one lump sum as opposed to every 14 days.
- No Future Medical Expenses – Insurance companies releases itself of any responsibility to pay for any future medical care. You will have to pay for any care yourself, but will receive money to compensate for this care in the lump sum settlement amount.
- No Right to Reopen Your Case – With C&R, you do not have the right to reopen your case if your injury or illness gets worse. You will receive financial compensation for this loss in the lump sum settlement calculation.
Q. How should I settle my case?
A. Whether to settle by STIPS or C&R depends on your individual circumstances. Some factors to keep in mind include:
- Is your condition likely to change over time?
- Will you likely need expensive medical care in the future?
- Do you have independent medical insurance to cover any future medical costs?
- Do you need the entire settlement to be paid at once?
There are advantages and disadvantages to each type of settlement. The Law Offices of Hanna Leung PLC can advise which decision would give you the maximum benefit.
Q. The person I work for tells me that I am an independent contractor and not an employee. He does not make any payroll deductions or withholdings for taxes, social security, etc., when he pays me, and at the end of the year he provides me with an IRS form 1099 rather than a W-2. By paying me in this manner does it mean I am automatically an independent contractor?
A. No. The fact that a person who provides services is paid as an independent contractor, that is, without payroll deductions and with income reported by an IRS form 1099 rather than a W-2, is of no significance whatsoever in determining employment status. Your employer cannot change your status from that of an employee to one of an independent contractor by illegally requiring you to assume a burden that the law imposes directly on the employer, that being, withholding payroll taxes and reporting such withholdings to the taxing authorities.
Q. Does it make any difference if I am an employee rather than an independent contractor?
A. Yes, it does make a difference if you are an employee rather than an independent contractor. California’s wage and hour laws (e.g., minimum wage, overtime, meal periods and rest breaks, etc.), and anti-discrimination and retaliation laws protect employees, but not independent contractors. Additionally, employees can go to state agencies such as DLSE to seek enforcement of the law, whereas independent contractors must go to court to settle their disputes or enforce other rights under their contracts.
Q. What can I do if I believe my employer has misclassified me as an independent contractor and as a result am not being paid any overtime?
A. You can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner’s Office), or you can file an action in court to recover the lost overtime premiums. In both situations, it will first be necessary to determine your employment status, that is, employee or independent contractor, before the issue of overtime can be addressed and decided. Additionally, if it is determined that you are an employee and you no longer work for this employer, you can make a claim for the waiting time penalty pursuant to Labor Code Section 203. Eligibility for this penalty is dependent upon your employment status, as independent contractors are ineligible for the waiting time penalty.
Q. My employer is not allowing me to take a meal period. Is there anything I can do about this situation?
A. Yes, there is something you can do if you are covered by the meal period requirements of the law. If your employer fails to provide the required meal period, you are to be paid one hour of pay at your regular rate of compensation (this is referred to as meal period premium pay) for each workday that the meal period is not provided. If your employer fails to pay the additional one-hour’s pay, you may file a wage claim with the Division of Labor Standards Enforcement.
Q. I regularly work an eight-hour shift. What can I do if my employer doesn’t provide me with a meal period?
A. You can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner’s Office), or you can file a lawsuit in court against your employer to recover the premium of one additional hour of pay at your regular rate of compensation for each workday that the meal period is not provided.
Q. If an employee works unauthorized overtime is the employer obligated to pay for it?
A. Yes, California law requires that employers pay overtime, whether authorized or not, at the rate of one and one-half times the employee’s regular rate of pay for all hours worked in excess of eight up to and including 12 hours in any workday, and for the first eight hours of work on the seventh consecutive day of work in a workweek, and double the employee’s regular rate of pay for all hours worked in excess of 12 in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.
Q. Are salaried employees entitled to overtime?
A. It depends. A salaried employee must be paid overtime unless they meet the test for exempt status as defined by federal and state laws, or unless they are specifically exempted from overtime by the provisions of one of the Industrial Welfare Commission Wage Orders regulating wages, hours and working conditions.
Q. Can an employee waive his or her right to overtime compensation?
A. No, California law requires that an employee be paid all overtime compensation notwithstanding any agreement to work for a lesser wage. Consequently, such an agreement or “waiver” will not prevent an employee from recovering the difference between the wages paid the employee and the overtime compensation he or she is entitled to receive. Labor Code Section 1194
Q. What are the basic requirements for rest periods under California law?
A. Employers of California employees covered by the rest period provisions of the Industrial Welfare Commission Wage Orders must authorize and permit a net 10-minute paid rest period for every four hours worked or major fraction thereof. Insofar as is practicable, the rest period should be in the middle of the work period. If an employer does not authorize or permit a rest period, the employer shall pay the employee one hour of pay at the employee’s regular rate of pay for each workday that the rest period is not provided.
Q. Must the rest periods always be in the middle of each four-hour work period?
A. Rest breaks must be given as close to the middle of the four-hour work period as is practicable. If the nature or circumstances of the work prevent the employer from giving the break at the preferred time, the employee must still receive the required break, but may take it at another point in the work period.
Q. When I need to use the toilet facilities during my work period does that count as my ten minute rest break?
A. No, allowing employees to use toilet facilities during working hours does not meet the employer’s obligation to provide rest periods as required by the IWC Orders. DLSE policy simply prohibits an employer from requiring that employees count any separate use of toilet facilities as a rest period.
Q. What is the minimum wage?
A. Effective January 1, 2008, the minimum wage in California is $8.00 per hour. It will increase to $9.00 per hour effective July 1, 2014, and to $10.00 per hour effective January 1, 2016.
Q. May an employee agree to work for less than the minimum wage?
A. No. The minimum wage is an obligation of the employer and cannot be waived by any agreement, including collective bargaining agreements. Any remedial legislation written for the protection of employees may not be violated by agreement between the employer and employee. Civil Code Sections 1668 and 3513
Q. I work in a restaurant as a waitperson. Can my employer use my tips as a credit toward its obligation to pay me the minimum wage?
A. No. An employer may not use an employee’s tips as a credit toward its obligation to pay the minimum wage.
Q. What is a tip?
A. A tip is money a customer leaves for an employee over the amount due for the goods sold or services rendered. Tips belong to the employee, not to the employer.
Q. My employer is deducting the credit card processing fees from my tips. Is this legal?
A. No. Labor Code Section 351 provides that the employer must pay the employee the full amount of the tip that is indicated on the credit card. The employer may not make any deduction for credit card processing fees or costs that are charged to the employer by the credit card company from gratuities paid to the employee.
Q. My employer deducts my tips from my paycheck. Is this legal?
A. No. Your employer can neither take your tips (or any part of them), nor deduct money from your wages because of the tips you earn. Furthermore, your employer cannot credit your tips against the money the employer owes you. Labor Code Section 351.
Q. My employer pays me less than the minimum wage because he includes my tips in my hourly pay. Is this legal?
A. No. Unlike under federal regulations, in California an employer cannot use an employee’s tips as a credit towards its obligation to pay the minimum wage. California law requires that employees receive the minimum wage plus any tips left for them by patrons of the employer’s business. Labor Code Section 351.