Your employees are all hourly, and some worked on Sunday January 1st and others worked on Monday January 2nd.  However, on January 2nd all salaried employees took the day off as their holiday.  How does an employer handle the pay for the two hourly employees that worked on January 2nd since they had to be at work on Monday January 2nd can they be paid the holiday rate?  

See the answer by clicking here.

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This year brings new workers’ compensation legislation, employment laws, continuing legal challenges and a special anniversary for our firm. In June PKNW will celebrate its 20 year anniversary. 

Parker, Kern, Nard & Wenzel began as an association of two attorneys and single Fresno office with Dennis Nard as its sole paralegal. We are now a statewide, multiple-office, 17 attorney workers compensation and employment defense firm providing full-service legal representation to the California business and insurance community.  

We thank our clients, friends and colleagues for 20 years of support. We could not and cannot continue to succeed without it. The dedicated staff of attorneys, secretaries, file clerks, accountants and other members of our firm past and present have worked very hard to exceed our client’s expectations. 

Many who read this can recreate the sound of Cindy Davis, the voice of Parker, Kern, Nard & Wenzel in their minds. She is just one example of the dedicated people who are the secret to our accomplishments.

Our sincere thanks to all who have contributed to PKNW’s 20 year success story.

We invite you to take pride and share in our anniversary, and look forward to serving you for many years to come.

"The employees claimed that Brinker had a consistent and common policy of:

• Requiring employees to work through meal periods and/or to work at least five hours without a meal period
• Requiring employees to work through rest periods and failing to provide rest periods of at least ten minutes per four hours worked

"Brinker countered that it made meal periods available to employees at the appropriate time and that it was not obligated to force an employee to take the meal period if the employee chose to work through lunch. Brinker also argued that it appropriately provided rest breaks.

"Brinker required employees to sign a form which contained the following provisions:

• “I am entitled to a 30-minute meal period when I work a shift that is over five hours.”
• “If I work over 3.5 hours during my shift, I understand that I am eligible for one ten-minute rest break for each four hours that I work.”

"Brinker’s policy stated that employees are responsible for clocking in and out for each shift and that employees could be disciplined for failing to follow the meal and rest break policy."

Labor Code section 512 provides: "An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than thirty minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived."

I recently was asked an excellent question regarding employer rights in California workers' compensation:  "Is there any specific California workers’ compensation statute or regulation the employer can use as basis/support, in order to ask the insurance carrier not to settle the case but to take to trial?"

Typically the employer cannot and in most cases should not direct an insurance company to take any matter to trial, as insurance policies typically cede these decisions to the insurance company itself as a matter of contract law.  This is not intended to be "pro" insurance company or "anti" employer.  This opinion is strictly general and based on what is my experience both with insurance policy language in California as well as successful defense of litigation.   "United we stand;  Divided we fall" is a fair philosophy in California litigation.

However it must be written that sometimes insurance examiners and companies may not see the entire picture as it relates to an employer's obligations, business and principles.  When this occurs there is some legal support in California workers’ compensation laws and statutes for workers’ compensation cases only allowing for an employer objection to any settlement.  If successful in opposing a settlement the employer can leave what typically is the only option left, which of course is trial.

Labor code section 3761(b) requires the employer to notify the insurer of any facts which would tend to disprove the claim “promptly.”  If such notice is provided the employer can make a written request to the WCAB that “no compensation is payable to an employee” unless there is proof of service on the employer no less than 15 days prior to WCAB approval of a compromise and release setting a time and place for hearing at which the agreement is to be approved.   The employer can then appear at the hearing and state its facts, evidence and arguments against applicant’s right(s) to benefits or settlement. Failure to provide the notice does not prevent the WCAB from approving the agreement but the board shall order 5813 expenses if such failure to notify is proved.

In order to preserve its rights the employer must file a declaration and petition pursuant to Title 8 California Code of Regulations sections 10450 and 10875, so the protections are not automatic. If granted a hearing the employer can appear and object to any settlement, though there is no guarantee of WCAB disapproval. The important approach would be to fully, fairly and completely document any evidence militating against a right to benefits at that hearing if properly notified by the insurance company and granted by the WCAB in a timely manner.

The best approach when it comes to influencing a California workers’ compensation defense trial decision is to talk with the insurance company and examiner citing Labor Code section 3761 and 3762 (collectively termed “The Employer Bill of Rights”). Too often I see the applicants’ and plaintiffs’ bars united in their representation of California’s injured employees and the defense divided. This is never ideal. Personally I have not encountered an insurance examiner or company not dedicated to fighting legitimate and documented insurance fraud, but the insurance companies know how high the legal standard is for asserting such defenses, the hazards and risks of trial as well as the realities of the system.

I encourage cooperation on the defense.  Rarely do I find myself arguing with an employer or insurance representative as too often disputes are a matter of better communication when both the insurance company and employer are defending cases.  However when principles are involved which require objection to settlements by employers, California law does confer rights upon the employer to raise its concerns before the Workers' Compensation Appeals Board.

"How long should I keep personnel and employment records?"

I generally recommend you keep personnel, employment and employee records for at least the period of employment plus four (4) years which should cover nearly every applicable law with the general exception of three (3): 

1. Pension and welfare information (which is generally six years);
2. First aid records for job injuries causing loss of work time (which is generally at least 5 years, but our firm keeps these records including settlements and other pleadings for a minimum of seven (7) years);
3. Safety and toxic chemical exposure records including MSDS sheets (which is generally at least thirty (30) years).

I have a chart which may help give you guidance with the following caution:  every employer is different and therefore I cannot give and this does not constitute legal advice through this website.  California law requires a fee and disclosure agreement as well as much more information about your company before I can give you any legal advice.

If you are interested in this chart feel free to contact me at the firm or by email at dp[at]pknwlaw.com.