Day Laborers and Homeowner Liability What Happens When the Tree Trimmer Hired by the Homeowner Falls from the Tree?

www.plaintiffmagazine.com

SEPTEMBER 2012

Day laborers and homeowner liability What happens when the tree trimmer hired by the homeowner falls from the tree?

Several questions are triggered regarding workers’ compen - sation coverage and/or civil liability when day laborers are hurt while working for homeowners. Is the day laborer an employee of the homeowner or an independent contractor? Is the day la - borer entitled to workers’ compensation benefits? Or, are civil remedies available? Who is an “employee”?

First, with regard to workers’ compensation eligibility, Labor Code section 3151 defines who is an “employee.” It provides, in pertinent part: “Employee” means every person in the service of an em - ployer under any appointment or contract of hire or appren - ticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes: (d) Except as provided in subdivision (h) of Section 3352 , any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, mainte - nance, or use of the dwelling, including the care and supervi - sion of children, or whose duties are personal and not in the BY CHRISTOPHER VIADRO course of the trade, business, profession, or occupation of the owner or occupant. When a homeowner hires a day laborer to perform work at (Italics added.) the home and the day laborer is injured, some unique workers’ The exception referenced in section 3351(d) has a signifi - compensation and civil liability issues may arise. The term “day cant impact on day laborers. Pursuant to Labor Code section laborer” is often used to describe workers that gather at street 3352(h), the following person is not an “employee” for purposes corners, parking lots, store fronts and similar locations through - of workers’ compensation coverage: out the state, waiting to be hired by individuals/companies that Any person defined in subdivision (d) of Section 3351 who need temporary labor. Per the Public Policy Institute of Califor - was employed by the employer to be held liable for less than 52 nia and the National Day Labor Survey, these workers are em - hours during the 90 calendar days immediately preceding the ployed in a variety of settings which include: date of the injury for injuries, as defined in Section 5411, or • Construction • Carpentry during the 90 calendar days immediately preceding the date • Moving/hauling • Farm work of the last employment in an occupation exposing the em - • Painting • Plumbing ployee to the hazards of the disease or injury for injuries, as • Gardening/landscaping • Dishwashing defined in Section 5412 , or who earned less than one hundred dol - • Roofing • Car wash lars ($100) in wages from the employer during the 90 calendar • Drywall • Electrical days immediately preceding the date of the injury for injuries, • House cleaning • Cook as defined in Section 5411, or during the 90 calendar days im - mediately preceding the date of the last employment in an oc - Oftentimes, the individual hirers are homeowners seeking help cupation exposing the employee to the hazards of the disease on residential projects. The duration of employment is often no or injury for injuries, as defined in Section 5412. more than a day to a few days. (Emphasis added.)

SEPTEMBER 2012

Thus, where the worker works less 9 (commencing with Section 7000) of Chapter 9 (commencing with Section 7000) than 52 hours or earns less than $100 in Division 3 of the Business and Profes - of Division 3 of the Business and Profes - the 90 days before the injury, the worker sions Code, or who is performing such sions Code [See below] shall hold a valid may be deemed an employee but will not services for a person who is required to contractors’ license as a condition of having be eligible for workers’ compensation obtain such a license is an employee independent contractor status. benefits under the homeowner’s insur - rather than an independent contractor. For purposes of workers’ compen - ance policy. And, as indicated above, day Proof of independent contractor status sation law, this presumption is a sup - laborers often work on short term resi - includes satisfactory proof of these fac - plement to the existing statutory dential projects (e.g., gardening, hauling, tors: definitions of employee and independ - tree trimming, demolition, painting, etc.) (a) That the individual has the ent contractor, and is not intended to where the work never reaches the 52 right to control and discretion as to the lessen the coverage of employees under hours necessary to trigger workers’ com - manner of performance of the contract Division 4 and Division 5. pensation eligibility. for services in that the result of the (Italics added.) In the foregoing situation, where the work and not the means by which it is homeowner is not liable for workers’ com - accomplished is the primary factor bar - Who is a contractor? pensation benefits because either the 52 gained for. hour or $100 threshold has not been (b) That the individual is custom - Chapter 9 of the Business and Pro - reached, he/she may still be civilly liable arily engaged in an independently es - fessions Code contains a number of sec - even though the injured worker is techni - tablished business. tions that detail the types of work for cally the homeowner’s employee if negli - (c) That the individual’s independ - which a license is required. For example, gence or some other tortious conduct can ent contractor status is bona fide and a license is required for carpet installers be shown. ( Mendoza v. Brodeur (2006) 142 not a subterfuge to avoid employee sta - and landscape contractors (e.g., pool, Cal.App.4th 72.) tus. A bona fide independent contrac - spa, fire place installation). In addition, The foregoing addressed whether a tor status is further evidenced by the and perhaps more pertinent to day la - worker is a homeowner’s employee for presence of cumulative factors such as borer issues, Business and Professions purposes of workers’ compensation coverage ; a substantial investment other than per - Code section 7026.1 provides several def - homeowner may still argue that the day sonal services in the business, holding initions for the term “contractor” among laborer was an independent contractor out to be in business for oneself, bar - which are the following: and not an employee. Generally, this dis - gaining for a contract to complete a (a) Any person not exempt under tinction would benefit the homeowner specific project for compensation by Section 7053 who maintains or services given the legal protections afforded the project rather than by time, control air-conditioning, heating, or refrigera - hirer of an independent contractor as set over the time and place the work is tion equipment that is a fixed part of forth in Privette v. Superior Court (1993) 5 performed, supplying the tools or in - the structure to which it is attached. Cal.4th 689 and its progeny (e.g., Hooker strumentalities used in the work other (b) Any person, consultant to an v. Dept. of Trans. (2002) 27 Cal.4th 198, than tools and instrumentalities nor - owner-builder, firm, association, organ - Kinsman v. Unocal (2006) 37 Cal.4th 659 mally and customarily provided by em - ization, partnership, business trust, cor - and Mckown v. Wal-Mart Stores, Inc. (2002) ployees, hiring employees, performing poration, or company, who or which 27 Cal.4th 219.) work that is not ordinarily in the course undertakes, offers to undertake, pur - ports to have the capacity to undertake, Who is an independent of the principal’s work, performing contractor? work that requires a particular skill, or submits a bid, to construct any building holding a license pursuant to the Busi - or home improvement project , or part How does one determine whether an ness and Professions Code, the intent thereof. individual is an employee or an inde - by the parties that the work relation - *** pendent contractor? Labor Code section ship is of an independent contractor (d) Any person not otherwise ex - 2750.5 sets forth a rebuttable presump - status, or that the relationship is not empt by this chapter, who performs tree tion that a worker is an employee and re - severable or terminable at will by the removal, tree pruning , stump removal, or quires proof of independent contractor principal but gives rise to an action for engages in tree or limb cabling or guy - status. Specifically, that section provides: breach of contract. ing. The term contractor does not in - There is a rebuttable presumption In addition to the factors contained in clude a person performing the affecting the burden of proof that a subdivisions (a), (b), and (c), any person activities of a nurseryperson who in the worker performing services for which a performing any function or activity for normal course of routine work per - license is required pursuant to Chapter which a license is required pursuant to forms incidental pruning of trees, or

SEPTEMBER 2012

guying of planted trees and their limbs. the homeowner asks the day laborer to company is sued in tort for negligence. The term contractor does not include a trim a tree and that is the end of the Liability is premised on the following: gardener who in the normal course of rou - homeowner’s involvement. That is not, (1) the tree trimmer may be deemed the tine work performs incidental pruning of however, the end of the inquiry regarding homeowner’s employee since the contrac - trees measuring less than 15 feet in height liability. One must explore whether there tor had no license where one was re - after planting . were “co-employees” on site. In other quired; So, putting the pieces together, what words, did the homeowner hire more than (2) the IW was not eligible for the home - is the consequence of a worker being one day laborer and/or hire an unlicensed owner’s WC coverage within the home - deemed an employee under Labor Code contractor who in turn hired day laborers? owner’s policy because the IW had not section 3351 but excluded from coverage (For all of the reasons set forth above, the worked more than 52 hours; under 3352(h) and not being an inde - unlicensed contractor and the other day la - (3) the supervisor on the ground was pendent contractor pursuant to Labor borers may similarly be deemed the em - deemed negligent for allowing the day la - Code Section 2750.5? Simply stated, the ployees of the homeowner.) If there were borer to work at such a height without fall homeowner can be held accountable for co-employees, then it is necessary to run protection. That negligence was attrib - civil damages under ordinary negligence through the negligence questions in the uted to the homeowner under the doc - and premises liability theories. preceding paragraph to assess whether any trine of respondeat superior. The injured worker must still prove of the co-employees were negligent. If the these theories against the homeowner em - answer is “yes,” then that negligence can Christopher Viadro is a ployer. To assess the claim, one must ask a be attributed to homeowner/hirer under partner at Butler Viadro, series of questions. For example, what was the doctrine of respondeat superior. LLP , in Oakland. He has a statewide practice and han - the involvement of the hirer? Did the hirer The tree trimmer work alongside the day laborer? Did the dles catastrophic personal in - hirer contribute to the injury/accident in By way of conclusion, reference is jury cases arising primarily any way? Did the hirer provide any equip - made to an example. Consider an individ - from industrial accidents, ment (e.g., table saw, ladder, etc.) and was ual working for an unlicensed and unin - Viadro dangerous premises, defective that equipment involved in the incident? sured tree-trimming company. In the products and general negli - Did the hirer direct the manner of the course of that work on a residential proj - gence matters. He litigates related workers’ work in any fashion? There are many other ect, he falls 17 feet from a tree, sustaining compensation cases where present. For any questions to ask, but the foregoing pro - a serious injury; he was not wearing fall questions about this article, he can be reached vides the gist of the inquiry. protection. The injured worker’s supervi - at [email protected] or through his In exploring these questions, it is sor was on the ground watching the work firm’s web site: www.butlerviadro.com. often the case that the hirer was only mini - and the incident occurred after five hours mally involved in the work. For example, of work. The homeowner who hired the