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David Warren


David Warren
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  • Re: How do you handle unused vacation days if an employee is terminated?

    In the 1980s we did this for the Brass only. We fired one of them (for very good cause) and he took us to CA-DLSE. Claimed he was promised 4 weeks vacation each year and we did not pay it. No timesheets. No policy. No contract. No offer letter. Just his word against ours at CA-DLSE. We lost. Next year the brass was on the same system as everyone else.

    CA is a bad state to not have a PTO policy in. No policy means your policy is whatever CA-DLSE says it is. Any time you have a benefit, you are (maybe) looking at ERISA and a bunch of other laws, Even the "follow your policy" states have been known to spin policies out of whole cloth if any prior company actions imply a policy. ALWAYS best to have a formal written policy and FOLLOW IT where benefits are concerned.

    Worse, the Executive compensation laws (federal) got very tight a few years ago. I could make a decent argument that failing to collect and report PTO for brass violates those laws. IRC 409(a) if memory serves.

  • Re: Contract to waive rights provided by personnel policy?

    You have several legally unrelated issues here:

    • Employee vs. independent contractor (IC) is a factor of statutory law. It cannot be waived. There is a ton of law and a ton of court decisions, including a few SCOTUS here. If I am going to say that Jan in an IC, then Jan better have a lot of clients and be advertising to get more. Plus pass a bunch of other tests. One "client" ICs are very unusual legally.
    • Benefits is a function of a whole different set of laws. Mostly ERISA but many benefits have laws specific to that benefit. So, look up each benefit one at a time and do not assume that there is a one-size-fits-all answer here. Generally speaking only employees get benefits. Giving an IC benefits by itself would be a factor in saying that a worker is really an employee.
    • This is not DIY. You need a really good attorney if you want to play these type of games. There are a lot of companies who thought they had good attorneys and still ended up in court for the exact sort of thing you are talking about.
  • Re: Holiday Pay

    If we are talking law such as FLSA, then the rule is "hours past 40". However companies can do more then the law requires. If your company wants to treat any hours worked on holidays as overtime, they can do so. In this case, I would do exactly what HR said.

  • Re: If you are attending APA Congress, what are you most excited to learn?

    Not attending but if I was, I would pick something complicated where I would likely learn something. Say garnishments (in the broad sense of the word) or benefits. I know a lot about benefits, but there is always more to learn. I would not attend discussions I already know cold. I remember attending a CA labor law seminar a long time ago, and half the stuff they told us was just plain wrong. Be careful with seminars that cover too much ground in too little time. And look for handouts. If the presentation was any good, it beats taking notes.

    Change of topics, but a lot of law firms have free webinars you can sign up for. They tend to be run by people who actually know what they are talking about and are often timely. You usually get a nice PDF of the presentation.

  • Re: FPC Exam

    Never bothered with this particular certification, but The Payroll Source Book by the APA is pretty much the bible in the payroll industry. If you know that, your test should be very easy.