Can you draw both SSDI and SSI Disability Benefits?

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The two most common types of disability benefits in the United States are Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). While both programs are administered by the Social Security Administration (SSA), they have different eligibility requirements and provide different types of assistance.

One question that frequently arises is whether it is possible to receive both SSDI and SSI benefits at the same time. The answer is yes, but it is not common.

SSDI is a federal program that provides benefits to individuals who have worked and paid Social Security taxes for a qualified number of years but are now unable to work due to a disability. To be eligible for SSDI, a person must have a disability that is expected to last at least 12 months and prevent them from doing any substantial gainful activity. The amount of the monthly benefit is based on the person’s earnings and contributions over their working life.

SSI is a needs-based program that provides financial assistance to disabled individuals with limited income and resources. To be eligible for SSI, a person must have a disability that prevents them from doing any substantial gainful activity and meet strict household income and asset requirements.
If a person’s SSDI benefit falls below the federal maximum for SSI, they may be eligible to receive both benefits. This is known as “concurrent” SSDI/SSI benefits. However, it is important to note that receiving both SSDI and SSI benefits is not common. If a person is eligible for concurrent benefits, their SSI cannot exceed the federal benefit rate (FBR), which has been set at $914 for 2023. Accordingly, if someone’s SSDI payment falls below the FBR, they might qualify for additional SSI benefits up to that amount, provided they otherwise are eligible based on financial need requirements.

What is the difference between SSDI and SSI disability benefits?

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The Social Security Administration (SSA) administers two types of disability benefit programs” Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI). While both programs provide financial assistance to individuals with disabilities, they have different eligibility criteria and benefits.


Eligibility

The eligibility criteria for SSI and SSDI differ based on the applicant’s work history, income, and assets. SSDI benefits are available to individuals who have worked and paid Social Security taxes for a certain number of years. To qualify for SSDI, an applicant must have earned enough Social Security credits through their work history. The number of credits required depends on the applicant’s age at the time they became disabled. Generally, an applicant must have worked for at least five of the last ten years and earned a total of 20 quarterly credits to be eligible for SSDI. Your benefits are not limited by your assets or other household income.

For those individuals that lack work credits under SSDI, SSI benefits are available to persons with limited income and resources who are unable to work in any capacity due to a disability. Under SSI eligibility criteria, the SSA considers an applicant’s income and resources, including other household income, savings, investments, family contributions and property.


Benefits

The benefits provided by SSI and SSDI also differ. SSDI benefits are based on the applicant’s work history and the amount of Social Security taxes they have paid over time. The amount of the monthly benefit payment varies based on the applicant’s earnings history.


In contrast, SSI benefits are based on a maximum federal benefit rate. As of 2022, the SSI cap is $794 per month for an individual. However, the actual benefit payment amount may be reduced based on an applicant’s other household income and resources.

If you’re your application for benefits has been denied, it is important to consult with an experienced disability attorney to determine your appeal options. My offices offers free case evaluations for Virginia residents. Call 804-440-6557 to schedule an initial consultation.

Can your employer prevent you from sharing wage information with others?

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In the past, it was not uncommon for employers to enforce strict confidentiality policies that limited an employee’s ability to discuss their own wage or salary information with co-workers, presumably for the purpose of deterring requests for wage increases or concealing disparate pay structures.

Passed in 2020, Virginia Code Section 40.1-28.7:9 now holds that “no employer shall discharge from employment or take other retaliatory action against an employee because the employee (i) inquired about or discussed with, or disclosed to, another employee any information about either the employee’s own wages or other compensation or about any other employee’s wages or other compensation or (ii) filed a complaint with the Department alleging a violation of this section.” However, the law does specifically address restrictions on prior employees, thereby leaving open the issue of whether employers can enforce confidentiality provisions in settlement or severance agreements entered into post-termination.

On the national level, the National Labor Relations Act (NLRA) also prohibits employers from disciplining non-supervisory employees for discussing their pay with co-workers. The NLRA protects employees’ rights to engage in “protected concerted activities,” which includes discussing wages, benefits, and other working conditions with their colleagues.

In combination, these law provide protection for employees who discuss their wages with other employees, and employers who violate these protections can face legal consequences. Employees who believe they have been retaliated against for discussing their wages or for filing a complaint related to wage discrimination can file a complaint with the appropriate government agency or seek legal counsel.

Seizure first aid posters now required for some employers

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Effective 2022, Virginia law now requires that employers of 25 or more employees post information on seizure first aid in a common area in the employer’s workplace. For the purposes of this section, “seizure first aid” means procedures to respond, attend, and provide comfort and safety to an individual suffering from a seizure. “Seizure first aid” does not include training to medically treat an individual suffering from a seizure. The poster can be downloaded from the Virginia Department of Labor at https://www.doli.virginia.gov/wp-content/uploads/2022/06/SFA-Flier_VALabor_8.5×11.pdf

Virginia employees now protected if they miss work to attend eviction proceedings.

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A little known amendment to the Virginia code now affords employees a new basis for job protection in the event they are compelled to attend court for an unlawful detainer or eviction. It is now unlawful for an employer to “discharge [an employee] from employment or take any adverse personnel action against him as a result of his absence from employment due to appearing at any initial or subsequent hearing on such summons, provided that he has given reasonable notice of such hearing to his employer.” Although the statute does not specify a private cause of action, the established policy could be cited as a basis for wrongful discharge under Virginia common law, also known as a Bowman claim.

2023 Minimum Wage Increase

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Historically, the Fair Labor Standards Act has created a national minimum wage for hourly employees. Though the federal minimum wage remains at $7.25 per hour, Virginia is now among the states that have set a higher minimum wage standard under state law. The Virginia Minimum Wage Act, passed in 2020, establishes incremental wage increases that will raise the minimum wage to $15 per hour by 2026. Effective January 1, 2023 the minimum wage in Virginia increases to $12 per hour. Absent amendments to the law, the next increase will occur in January 2025. Virginia law adopts federal exemptions under the FLSA and also includes its own exceptions, such a babysitters working fewer than 10 hours per week, students participating in a bona fide educational programs, golf caddies, taxicab drivers and persons employed in summer camps for children.

Are Non-Competes Enforceable in Virginia?

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For years, companies have required that new employees sign covenants not to complete as a way blocking them from seeking work with competitors. If taken to an extreme, these provisions can substantially limit employment opportunities for workers in their chosen field within their own locality. As of 2020, Virginia law now protects “low wage” employees from being restricted in their future employment.

As defined by the statute, a “covenant not to compete” means a covenant or agreement, including a provision of a contract of employment, between an employer and employee that restrains, prohibits, or otherwise restricts an individual’s ability, following the termination of the individual’s employment, to compete with his former employer. the new lay strictly prohibits employers from requiring or enforcing non-competes for low wages employees and provides a private cause of action for violations.

A “low wage employee” means an employee whose average weekly earnings are less than the average weekly wage of the Commonwealth as determined pursuant to subsection B of § 65.2-500. In 2022, that number was set at $1,290 or $67,080 annually.

Not everyone is covered by the new law. Besides those who earn in excess of the threshold, the law does not cover persons whose earnings are derived primarily from sales commissions, incentives, or bonuses paid to the employee by the employer. The law also does not apply retroactively to persons who signed non-competes prior to 2020.

Virginia Statute Limits Certain Provisions in Confidentiality Agreements

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Virginia Code Section 40.1-28.01 was passed in 2019 to prohibit any provision in a nondisclosure or confidentiality agreement that has the purpose of concealing the details of a sexual assault. The new section is not retroactive, but it does ensure that employers will not be able to rely upon non-disclosure agreements to conceal sexual assaults occurring in the workplace. At present, the language is narrowly drafted to cover current and prospective employees only. Accordingly, confidentiality agreements executed by former employees in consideration for severance or settlement payments may not be covered by the statutory protection.

Can the NLRB outlaw confidentiality clauses in severance agreements?

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The National Labor Relations Board has reversed its prior precedent, holding that confidentiality and non-disparagement clauses in severance agreements for non-managerial employees can violate an employees basic right to discuss terms and conditions of employment under Section 7 of the National Labor Relations Act – even if the employee is not covered by a union. Though traditionally linked to union activity, Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”

The new standard was set forth in McLaren v. Macomb, 372 NLRB 58, as issued in February 2023. The decision does not, on its face, outlaw all confidentiality provisions, but it does take issue with broad language that prohibits the employee from discussing the terms of the agreement with any third party. The Board reasoned that an absolute ban that prohibits employees from discussing the terms of the agreements with co-workers or union representatives could produce a chilling effect that would discourage employees from bringing charges before the Board, co-operating with Board investigations or assisting their co-workers who were subjected to unlawful actions. Note that the NLRB’s ruling generally does not pertain to Supervisory personnel who have general managerial authority such as the right to hire, discipline and fire employees.

Can your employer avoid overtime payments by using an adjustable pay scheme?

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In U.S. Department of Labor v. Fire & Safety Investigation Consulting Services, the Fourth Circuit addresses an overtime claim where the employer utilized a “blended” pay scheme that changed depending on the total hours worked in a two week pay period.


The FLSA requires that covered employers pay their employees “at a rate not less than one and one-half times the regular rate for any hours worked in excess of 40 hours per workweek. At issue in this case was the definition of an employee’s “regular rate.” Typically, the regular rate is the hourly rate that the employer pays the employee for the normal, non-overtime forty hour workweek. However, in some cases, employers may attempt to assert that their pay scheme is intended to cover the base pay for all overtime hours.

In this case, the Fourth Circuit rejects the employer’s argument, cautioning that employers should not reply upon “creative” pay schemes that retroactively calculate overtime and non-overtime components for the benefit of the employer.


https://law.justia.com/cases/federal/appellate-courts/ca4/18-1632/18-1632-2019-02-08.html