Temporary Disability For Seasonal Workers: How Does It Work, When Do You Pay
This is a short summary of how to advise your clients on when to pay temporary disability to seasonal farm workers, or any seasonal type worker, and when NOT to pay.
What is a "Seasonal" Worker?What differentiates between a seasonal worker, and a regular full-time employee? A seasonal worker normally is a worker who is employed for a specific period of time throughout the year, and is paid during that specific time, but then is terminated and not paid during the "off-season" as some call it. Normally, the most cases I have come across where there are instances of seasonal workers, are farm laborers. Normally, farm laborers are hired by contractors who then employ their services to farm owners for a seasonal period, to pick a certain crop during its harvest period, or irrigate a field during a specific dry time of the year, or to plow and plant crops during the changing of a crop. They normally are employed as "at-will" employees, and don't retain any full-time employment status.
When & How Do You Pay TD To "Seasonal" Workers?A good way to ascertain when and how to pay the injured worker the temporary disability indemnity payments correctly when they are seasonal workers is deposing them. The deposition will be useful in ascertaining more about the injured worker's job duties and exactly how long the "seasonal" work was during the year. Another is obtaining employment and wage history from the employer. This is important with regard to any TD or retro-TD that you may end up owing if you don't ascertain these facts correctly. You need to find out if the injured worker is truly a seasonal farm laborer, then TD payments will depend on when the work season is, and how many weeks are in the work season. If your injured worker is truly a seasonal farm laborer, then TD payments will depend on when the work season is, and how many weeks are in the work season. There are two schools of thought and a split of authority regarding what the proper TD rate is for seasonal employees. There is the argument that TD is payable for the entire year (52 weeks) to a seasonal employee. This pertains more to seasonal employees who are paid 12 months out of the year however, even though they may work only a portion of it. TD is reflected as a compensation for lost wages, and as such it is paid over the entire year at a rate that takes into account a 52 week period. However, the more frequently used TD rate when dealing with true seasonal employees, as per Westside Produce Co. v. WCAB (Avila) (1978) 81 Cal.App.3d 546, is that TD is payable based upon earnings at the time of injury only for that period the employment would have continued. In other words, it is the total amount of wages earned during claimant's period that he would have worked if not injured. Therefore, the total amount of TD payable will be larger due to the total earnings being divided by a period of time less than 52 weeks. Lastly, TD is only payable during the season, and defendant is NOT liable for TD during the off-season.