Benjamin J. Herold
Benjamin J. Herold
Associate, Los Angeles, CA
Formerly: Surf Instructor, Retail Wine Sales, Busser
  • B.A., Philosophy, Hunter College, New York, NY;
  • J.D., Benjamin N. Cardozo School of Law, New York, NY.

I’m the younger of two brothers. That on its own is nothing exceptional, but it’s definitely why I pursued a career in the law. I grew up advocating. My career in advocacy began with an impassioned battle for the basic right to stay up as late as my brother. As I grew older, I advanced to advocating for the exoneration of the wrongfully imprisoned, fighting for people at the lowest points of their lives, and trying the unwinnable cases.

After eleven years in New York City, I returned to my home town of Los Angeles. In looking for a new firm, I was struck by Stokes Wagner’s passion for humanity I felt across all attorneys and staff here. I am proud to work with all the attorneys and staff here, representing employers in an industry dedicated to caring for all members of the human race.

Whether you need someone to talk through your frustrations, find the answer to a perplexing question, zealously advocate for your rights, or give you the name of the best slice spot in any one of NYC’s outer boroughs – I’m here to help.

The Social Security Administration (“SSA”) has announced, effective January 2019, it will begin enforcing penalties against employers who file Form W-2s with inaccurate employee information.

These penalties are not excessive in the micro context ($270 per form), but they can add up quickly and are only capped at an annual maximum penalty of $3,282,500.

What should you do? Keep an eye on your incoming mail from the SSA. Effective as of August 2018, the SSA is mailing letters to employers concerning each employee who has already been found to have an inaccurate Form W-2. If you receive one of these letters, be sure to re-submit an accurate Form as soon as possible before the end of the 2018.

You should not assume, however, that if you do not receive a letter from SSA that you are in the clear. In order to ensure full compliance, we recommend all employer’s take steps to ensure that employee information is accurate prior to the end of 2018. The SSA provides a number of free tools and suggestions to assist employers in getting their W-2s updated. With these tools, checking and updating your W-2s should be a quick and easy process that could save you from potentially serious penalties in the future.

A sample of the letter the SSA will be sending to employers in 2018 can be found here.

The SSA’s recommended guidelines for checking Forms W-2 for accuracy can be found here.

For a PDF version of this update, click here.

The California Employment Development Department (EDD) recently updated its Notice to Employees poster (DE 1857A) and its pamphlet, For Your Benefit: California’s Program for the Unemployed (DE 2320).

Employers are not required to post the new version of the poster or provide the updated version of the pamphlet until January 1, 2019, but Stokes Wagner encourages all California employers reading this article to be proactive and bring their literature into compliance as soon as possible. Both of these changes are quick and easy compliance updates that could save you a costly headache.

The updated poster can be found online, here in English and here in Spanish. The poster provides workers with information regarding unemployment insurance, state disability insurance and paid family leave. Remember to place all posters in conspicuous locations where your employees will be likely to read them.

The updated pamphlet can be found online, here. This pamphlet provides information on California’s unemployment benefits and is to be provided to every employee upon termination, or where an employee is laid off or takes a leave of absence.

For a printable PDF of this article,click here.

If you are considering settling your employee’s workers’ compensation claim and hoping to avoid further litigation, be aware of the Adrian Camacho v. Target Corporation decision by California’s Fourth District Court of Appeal.

Plaintiff Adrian Camacho, a Target employee, filed a workers’ compensation claim due to injuries he suffered as a result of workplace harassment. Target settled the claim with a standard Compromise and Release (“CR”). This form contains a clause which makes clear that execution will have, “no effect on claims that are not within the scope of the workers’ compensation (…) unless otherwise expressly stated.” (emphasis added) This final clause became the central issue of Camacho.

As a condition of settlement, Target included the following Addendum to this standard form CR which they believed would discharge them of all future liability:

“E. SETTLEMENT ACCURALS (sic)(:) The amount in paragraph #7, page 6, includes consideration for the settlement by this Compromise and Release of any claimed, accrued medical temporary disability, vocational rehabilitation, temporary disability, mileage, penalties and interest, reinstatement, lost wages, attorney fees, costs, or any other claims for reimbursement, benefits, damages, or relief of whatever nature, include [sic]{:target=”blank”} Labor Code §132(a) (Discrimination for filing a work injury) or Labor Code 11 §4553 (for serious and willful misconduct by the employer) claims filed, threatened, or contemplated, through the date of the Order Approving Compromise and Release.”

Shortly thereafter, the plaintiff filed a civil complaint against Target for multiple causes of action related to the same harassment allegations. The court summarily dismissed the plaintiff’s claim, agreeing with Target that the Addendum was sufficient to release the employer from civil liability.

However, the Fourth District Court of Appeal for California found this decision to be in error. The Court reasoned that the context of the general release clause in the Addendum was problematic, buried under multiple lines of technical language. The Court held the release to be insufficiently clear to put a claimant on notice that they were executing a general release of all liability and that the plaintiff could continue on his civil claim.

What does this mean for you?

The Court’s reasoning was based heavily on the nature of workers’ compensation proceedings. Claimants are not required to appear with an attorney, and regularly do not. The threat of imbalance in party representation make it imperative to keep safeguards in place to avoid employees improvidently waiving their rights or releasing their employer from liability without careful consideration. Thus, a court will require any release to be in “clear and non-technical language.”

Err on the side of caution in negotiating a settlement of a workers’ compensation claim. Clearly offset a general release in its own section on both the standard CR and in a separate addendum. Make clear the intent to specifically release the employer from all future claims and causes of action, explicitly including any unknown or unanticipated claims pursuant to Civil Code § 1542.

Less is not always more. In settlements like these, you can never be too careful.

For a printable PDF version of this article, click here.