Employee or independent contractor? California worker injured at remodeling job

Defendant retained overall control over work's details, workers' compensation panel says

Employee or independent contractor? California worker injured at remodeling job

All workers were presumed employees, unless the hirer could show that the worker met specific criteria to be considered an independent contractor, a panel of the Workers’ Compensation Appeals Board of California said in a recent case.

The defendant in the case of Herrera vs. Paiva; State Farm Fire and Casualty Company, administered by Sedgwick Claims Management hired the applicant to work on the remodeling of a house. The applicant’s work involved floor brackets, framing, roof sheathing, tile installation, and plumbing.

In January 2019, the applicant allegedly injured his lumbar spine, right knee, and head when scaffolding collapsed. He testified that the defendant:

  • was almost always present
  • paid him in cash at the end of every day
  • kept track of his lunch breaks
  • decided where the doors and windows would be placed
  • directed him on how the plumbing would run
  • showed him how he wanted the tile laid out and sometimes instructed him on how to do this

According to the applicant, the defendant created an employee ledger, which showed that the applicant worked from November 2018 to January 2019 and received a total of $6,712.50, consisting of $30 per hour for 224.5 hours of work.

The defendant testified that he did not tell the applicant when to take lunch though he noted lunch breaks on the ledger and that he did not supervise and instruct the applicant though he would go over the work to be performed.

The workers’ compensation administrative law judge found that the applicant was the defendant’s employee as of the date of the injury.

The defendant asked for reconsideration. He argued that the applicant performed work as an independent contractor and could not be considered an employee under sections 3351 and 3357 of California’s Labor Code.

Applicant is ruled an employee

The panel of the Workers’ Compensation Appeals Board agreed with the judge’s decision. The applicant performed work for the defendant as an employee, not as an independent contractor, the panel said. The evidence did not show that the applicant had a distinct occupation or business, received payment by the job, or exercised the skill required of a specialist without supervision, the panel added.

The panel found that the defendant oversaw the applicant’s work and thus retained overall control over the work’s details. The defendant instructed the applicant on how to perform his work, provided the materials and place of work though the applicant had his own tools, and stayed on the property 95% of the time while the applicant was working.

The defendant argued that the applicant could not be presumed an employee under section 2750.5 of the Labor Code. That section provided that, if an unlicensed contractor was injured while performing work for which a contractor’s license was required, there was a rebuttable presumption that the unlicensed contractor was an employee.

The panel rejected this argument as moot since it had already determined that the applicant performed work as an employee, not as an independent contractor.

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