Is an intern an employee for workers’ compensation purposes?

Intern claims injury to head, neck, back, knee in motor vehicle accident en route to office

Is an intern an employee for workers’ compensation purposes?

A panel of the Workers’ Compensation Appeals Board of California recently found that a woman claiming benefits was an employee at the time of her alleged injury and that the going and coming rule did not bar her claim.

The case of Orberg vs. Inter Sources, Inc.; State Farm Fire and Casualty Company arose from a written agreement between the applicant and the CEO of Inter Sources, Inc., the defendant in this case. The contract offered the applicant an internship position as a business analyst in the defendant’s training program.

The applicant started attending the training classes at the defendant’s office in Fremont, California. The defendant hired an employee to transport students to and from its office. A friend of this employee assisted with picking up the students.

In July 2015, while the friend was driving to the training class, the applicant was injured in a motor vehicle accident. The applicant later claimed injuries arising out of and in the course of employment to her head, neck, back, and knee.

The workers’ compensation administrative law judge rejected the claim. The judge, upon finding that the applicant was not an employee when she was injured, did not address the remaining issue of whether the going and coming rule barred the claim.

Read more: How does the commercial traveler rule affect workers' compensation?

The applicant asked for a reconsideration. She argued that she was entitled to workers’ compensation benefits because she was the defendant’s employee when she was injured.

Intern was an employee

The panel of the Workers’ Compensation Appeals Board canceled the judge’s findings. The applicant was the defendant’s employee under the California Workers’ Compensation Act at the time of her alleged injury, the panel decided.

The presumption that the applicant was an employee applied because she showed that she rendered services to the defendant as an intern in the defendant’s program, the panel said.

The business analyst agreement required the applicant to perform duties and responsibilities going beyond simple training or education, including communicating with customers, competitors, and others to stay abreast of industry or business trends; working with the defendant’s project teams; giving business partners and projects teams the status of initiatives; and managing the timely flow of business intelligence information to users.

The panel – citing the ruling in Borello v. Department of Industrial Relations (1989) – held that the evidence favored the applicant’s status as an employee, not as an independent contractor, because the primary factor of control and most of the secondary factors in Borello weighed in the applicant’s favor.

‘Control factor’ considered by panel

Regarding the control factor, the evidence showed that the defendant retained all necessary control over its training program and over the applicant’s activities as an intern who attended training 40 hours per week for five weeks. Specifically, the defendant:

  • provided the applicant with a workplace in Fremont
  • hired someone to provide training
  • set a start time and end time for the training program
  • supervised the applicant’s attendance
  • notified the applicant when she was “missing too many classes”
  • gave a telephone number where people could direct issues regarding the applicant’s work

The panel ruled that the secondary Borello factors also supported the applicant’s employee status for the following reasons. First, the applicant was an integral part of the defendant’s business. Second, she was not engaged in a distinct occupation or business as a business analyst. Third, the manner of compensation was more indicative of an employer-employee relationship.

Next, the panel determined that the going and coming rule did not bar the applicant’s claim, given that the defendant provided transportation to and from the office. The person who drove the applicant to the office in July 2015 was providing the defendant’s transportation services, was acting as its agent under its control, and was on its insurance policy.

The panel found that the defendant clearly assumed the risks relating to the driver’s involvement with transportation. The defendant knew about the driver’s activities and acted to protect itself against the risks associated with such activities.

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