An out of state staffing agency offered a position to a computer consultant at its client's site in San Diego with the client exercising %100 right of control. After accepting the offer the consultant started her/his work, got injured while working at home. The agency and client secretly and fully executed a contract which effectively misclassified the consultant as Independent Contractor on the very same day she/he was in hospital to seek medical treatment.
1. Is such misclassified injured contingent worker or consultant considered an employee of both Agency and Client?
2. Under California WCAB, are the rights of such injured contingent misclassified worker protected?
3. Is such injured misclassified employee construed a Day laborer, a temp employee with no protections or rights?
First, I am editing the practice area, so you can hear from experienced Worker's Compensation attorneys.
Second, the agreement between the staffing agency and the client does not control the consultant's classification as either a worker or an independent contractor. According to the Division of Labor Standards Enforcement,
There is no set definition of the term "independent contractor" and as such, one must look to the interpretations of the courts and enforcement agencies to decide if in a particular situation a worker is an employee or independent contractor. In handling a matter where employment status is an issue, that is, employee or independent contractor, DLSE starts with the presumption that the worker is an employee. Labor Code Section 3357. This is a rebuttable presumption however, and the actual determination of whether a worker is an employee or independent contractor depends upon a number of factors, all of which must be considered, and none of which is controlling by itself. Consequently, it is necessary to closely examine the facts of each service relationship and then apply the law to those facts. For most matters before the Division of Labor Standards Enforcement (DLSE), depending on the remedial nature of the legislation at issue, this means applying the "multi-factor" or the "economic realities" test adopted by the California Supreme Court in the case of S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341. In applying the economic realities test, the most significant factor to be considered is whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed. Additional factors that may be considered depending on the issue involved are:
•1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
•2. Whether or not the work is a part of the regular business of the principal or alleged employer;
•3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
•4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
•5. Whether the service rendered requires a special skill;
•6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
•7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
•8. The length of time for which the services are to be performed;
•9. The degree of permanence of the working relationship;
•10. The method of payment, whether by time or by the job; and
•11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.
Even where there is an absence of control over work details, an employer-employee relationship will be found if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary. (Yellow Cab Cooperative v. Workers Compensation Appeals Board (1991) 226 Cal.App.3d 1288)
If the consultant is misclassified, the consultant can file a claim with DLSE at:
Along with employment issues, there will likely be coverage issues as well. Whether a piece of paper states someone is an employee or independent contractor is not the determining factor. Mr. Kane provides an excellent explanation. But, why was she in the hospital in the first place? Was is causally linked to work?
They could both potentially be an Employer, or not. There is a chance that you are an Employee of the Staffing Company, and you are an Independent Contractor to the San Diego company. You are making a somewhat serious leap of logic that you are NOT an Independent Contractor. As discussed, it is a fact-sensitive analysis based upon multiple factors. You should probably hire a Certified Specialist in WC to do the analysis and help you wind through the WCAB system.
Mr Kanes answer is a good indication of how this issue is decided. In my state the court goes out it's a way to find an employee relationship in this situation and would likely rule the staffing company is the employer for workers compensation coverage. I strongly urge the consultant to get an attorney as they haver have already demonstratwed they will go to an extreme to try to defeat the claim that should have been compensated
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