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socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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My husband (US citizen) is getting long-term disability insurance

Resolved Question:

My husband (US citizen) is getting long-term disability insurance and social security disability payment. The disability is a life-long condition. However, because the employer did not report (pay premium on) his overseas wages which is about 50%of his total wages to the insurance company, the insurance company decided his overseas wages will not be covered. Also, the company did not pay his FICA tax on his overseas wages which I think is against law. Any clue what my husband can do? Thanks so much.
Submitted: 6 years ago.
Category: California Employment Law
Expert:  socrateaser replied 6 years ago.
There are two different issues here:


Generally, all employees are subject to FICA payroll tax, whether or not the employee is employed winthin or without the USA, unless the IRS has entered into a "totalization agreement" with the foreign jurisdiction. For more info on this issue, see this link.

If you believe that the employer has unlawfully failed to remit FICA payments, then you can file a complaint with the IRS on Form 211 or Form 3949-A.

Private Disability Insurance

This issue is entirely controlled by the employment contract with the employee, and the insurer's policy terms. It is extremely unlikely that the insurer would deny benefits in violation of the policy terms and conditions. The fact that the employer did not make premium payments on behalf of the employee could be a straight breach of contract, or alternatively a breach of trust under ERISA (Employee Retirement Income Security Act). If the former, then you would have to hire a private attorney to sue the employer for the breach. If the latter, then while you could hire a private attorney to sue on this ground as well, you could also file a complaint with the U.S. Department of Labor, at: 1.866.444.EBSA (3272).

For an employment rights lawyer referral, see this link.

Hope this helps.

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