Workers' Compensation Discussion Forums
401K contributions/ accruing PTO while out of work - CALIF - Printable Version

+- Workers' Compensation Discussion Forums (https://www.workerscompensation.com/forums/general)
+-- Forum: Category (https://www.workerscompensation.com/forums/general/forumdisplay.php?fid=3)
+--- Forum: Injured Worker Forum (https://www.workerscompensation.com/forums/general/forumdisplay.php?fid=4)
+--- Thread: 401K contributions/ accruing PTO while out of work - CALIF (/showthread.php?tid=16048)



401K contributions/ accruing PTO while out of work - CALIF - kmecdd - 02-19-2016

I am new to this forum. I live in California, was injured at work, have been out of work for 2 + years. I am awaiting the AME's final determination.  

I have missed out on accruing about 7 weeks of vacation time by not being at work and want to know if that can be factored into any final settlement.  (I am still considered an employee on inactive status - no separation from the company as of yet.)

Also, I have a company matching 401K plan that matches dollar for dollar up to 3% and .50 cents on the dollar for 2%.  Bottom line, I obviously am not contributing to my 401K due to TTD and  PD being my source of income (not a paycheck from the company) but I feel I am missing out on all of those contributions by the employer due ot the work injury. Is there any way to factor in this loss in a final settlement?

Thanks!


RE: 401K contributions/ accruing PTO while out of work - CALIF - 1171 - 02-20-2016

maybe.
the WCAB has no jurisdiction over employer leave policies outside of work comp rules or 401 K contributions so you may have to trust the employer to live up to any such side agreements


RE: 401K contributions/ accruing PTO while out of work - CALIF - kmecdd - 02-20-2016

(02-20-2016, 12:40 AM)1171 Wrote: maybe.
the WCAB has no jurisdiction over employer leave policies outside of work comp rules or 401 K contributions so you may have to trust the employer to live up to any such side agreements

Thanks for the quick response.  Do I approach the employer directly about such requests?  I do have an attorney but they are pretty busy and my guess is, not likely to want to get involved if this is not part of their jurisdiction.

Can my attorney mention this to the IC attorney if/when they discuss the settlement?  I realize there is no law for the IC attorney to have to abide by with regard to this issue, but perhaps it might be worth mentioning during any discussion regarding finalizing things.  

It just seems that if the work related injury is taking me away from work, then benefits normally allotted to me should continue to be paid, including vacation time and 401K matcing.  

Thank you again.


RE: 401K contributions/ accruing PTO while out of work - CALIF - 1171 - 02-20-2016

i don't think you understand.
I don't know what kind of negotiating leverage you have.
you can't count on the employer changing their policies just because you ask nicely.
what are you willing to give up?
what do you have to bargain with?

are there discrimination issues, safety order violations, harassment and unjust termination claims, fraudulent business practices, etc?
these are things an employment law atty would handle and could separately negotiate for vacation and 401K considerations at the time of your comp settlement.

if you don't have anything else, talk to your comp lawyer. they know issues and maybe able to find/trade something in your comp benefits that could affect the employer benefits you're interested in.

the things you want are outside of the comp benefits and the comp court but are controlled by labor laws. I don't see a labor law violation on their vacation or pension decision but a labor law atty may find something.


RE: 401K contributions/ accruing PTO while out of work - CALIF - California_Help - 02-20-2016

I would talk to your attorney but I have never heard of an employee getting reimbursed for vacation pay he did not accrue or being able to contribute to 401k while on medical leave. It never hurts to ask.


RE: 401K contributions/ accruing PTO while out of work - CALIF - kmecdd - 02-20-2016

(02-20-2016, 03:08 PM)1171 Wrote: i don't think you understand.
I don't know what kind of negotiating leverage you have.
you can't count on the employer changing their policies just because you ask nicely.
what are you willing to give up?
what do you have to bargain with?

are there discrimination issues, safety order violations, harassment and unjust termination claims, fraudulent business practices, etc?
these are things an employment law atty would handle and could separately negotiate for vacation and 401K considerations at the time of your comp settlement.

if you don't have anything else, talk to your comp lawyer. they know issues and maybe able to find/trade something in your comp benefits that could affect the employer benefits you're interested in.

the things you want are outside of the comp benefits and the comp court but are controlled by labor laws. I don't see a labor law violation on their vacation or pension decision but a labor law atty may find something.
Thanks.  I don't have any other issues like discrimination,etc.  I am not even sure what the policy is - the employee handbook does not address vacation accrual during medical leave or 401K policy.  The company is enormous but I do not know what type of policy they have regarding it.  I will talk with my attorney to see.   It does come to about $9,000 worth.  Thanks for taking time to respond.


RE: 401K contributions/ accruing PTO while out of work - CALIF - kmecdd - 02-20-2016

(02-20-2016, 05:37 PM)California_Help Wrote: I would talk to your attorney but I have never heard of an employee getting reimbursed for vacation pay he did not accrue or being able to contribute to 401k while on medical leave. It never hurts to ask.

Thanks, I think I will check with the attorney and see.  I realize that workers comp doesn't handle 401K or vacation accrual, but it seems unfair that a work injury that has me not working for quite a long time, is responsible for me missing out on contributions to the 401K and missing out on vacation time.   Thanks for taking time to reply.


RE: 401K contributions/ accruing PTO while out of work - CALIF - 1171 - 02-20-2016

under comp law the employer is not responsible; your injury is responsible.
both the employer and the employee gave up certain rights in order to deal with the injury quickly and avoid the pitfalls and delays of having to use the civil justice system.

comp benefits are controlled and limited by each state.
you are making assumptions and comparing comp to civil liability. comp law is "no fault" so is much different then civil liability and tort law. It is not about making the employee whole.
talk to your local legislator about the inequities and unfairness of the comp benefits as you see it.
it's up to them to make the laws fair to both parties.


RE: 401K contributions/ accruing PTO while out of work - CALIF - California_Help - 02-21-2016

(02-20-2016, 07:02 PM)kmecdd Wrote:
(02-20-2016, 05:37 PM)California_Help Wrote: I would talk to your attorney but I have never heard of an employee getting reimbursed for vacation pay he did not accrue or being able to contribute to 401k while on medical leave. It never hurts to ask.

Thanks, I think I will check with the attorney and see.  I realize that workers comp doesn't handle 401K or vacation accrual, but it seems unfair that a work injury that has me not working for quite a long time, is responsible for me missing out on contributions to the 401K and missing out on vacation time.   Thanks for taking time to reply.

You can ask your employer for a copy of your 401k policy, but again I have never heard of what you are attempting.