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Social Security Windfall Elimination Provision

The Windfall Elimination Provision (WEP) addresses Social Security retirement and disability benefits and generally affects individuals who earned a pension through their employment with a government agency and who also paid Social Security taxes through other employment endeavors. The WEP only affects federal employees whose pension derives from the Civil Service Retirement System. The WEP was instituted to remedy the inequity where individuals whose employment was not covered by Social Security nevertheless had their Social Security benefits computed as if they were lower-wage workers in addition to receiving a pension from their employment. A lower-wage worker receives a higher percentage of their pre-retirement earnings as their benefit amount than does a higher-wage worker.

Distribution of Proceeds From Third Party Action

Once a third party action has concluded and a recovery achieved for an employee's injury, the matter of distribution arises. As a first priority, the general rule is that the party who paid the employee compensation (most likely the employer or its carrier) will be reimbursed in an amount equivalent to its compensation outlay. The employee will then be entitled to any excess funds that remain. Some states vary this by mandating that only a portion of the excess be turned over to the employee.

Uninsured Contractor

Some employers may seek to avoid workers' compensation liability by using contractors to perform work that would normally be performed by the employer's own employees. The reasoning is that employers are responsible only for the workers' compensation coverage of "employees." However, to preclude employers from evading liability by this method, most jurisdictions will impose liability here if the contractor itself is uninsured for workers' compensation. Thus, if an employer utilizes a contractor's employees to do that which the employer's own employees would normally do, and an employee of the contractor is injured, the employer will be responsible for worker's compensation despite the fact that the injured individual is not an "employee" of the employer. These state statutes basically deem the individual an "employee" to further the goals and purpose of workers' compensation. In order to determine whether the contractor is performing work that would normally be done by the employer's own employees, courts will look to the employer's past practices as well as the practices of other employers in the same industry or trade.

Acts Outside Employee's Regular Duties That Benefit Others

When an employee acts to benefit his employer, he is considered to be within the course of his employment as long as such actions were undertaken in good faith. It is immaterial whether the employee's own regular work assignments were furthered by his actions; it is merely whether the employer's interests were promoted. As a corollary to this rule, it is also the case that if an employee aids a co-worker with the co-worker's job duties, his good faith actions in doing so are also within the course of his employment. Compensation has even been awarded to an employee who was injured while helping a co-worker after the employee's regular workday had ended. The reasoning behind the allowance of compensation in instances such as this is that it is contrary to the employer's best interests to inhibit the helpful nature of employees. Thus, helping a fellow employee is advancing the employer's interests, albeit indirectly.

"Dual Persona" and the Attachment of Tort Liability for a Worker's Injury

Normally, given the nature of the workers' compensation system, employers are immune from an injured worker's tort action; his exclusive remedy is workers' compensation benefits. However, when the employer has such a distinct persona, separate and apart from its persona as the "employer," the employee may then pursue a tort action. The two personas of the employer are seen as separate legal entities, one of which (the employer persona) is immune from suit, and the other, distinct persona that is vulnerable to suit.