10 Oct 2024

Frequently Asked Questions on Complex Employment Issues for California Workers’ Compensation

By Hon. Robert G. Rassp, Presiding Judge, WCAB Los Angeles, California Division of Workers’ Compensation

Disclaimer: The material and any opinions contained in this article are solely those of the authors and are not the opinions of the Department of Industrial Relations, Division of Workers’ Compensation, or the WCAB, or any other entity or individual. The materials are intended to be a reference tool only and are not meant to be relied upon as legal advice.

Excerpted from: Complex Employment Issues for California Workers' Compensation (284-page special supplement to Rassp & Herlick, California Workers’ Compensation Law). To purchase this special supplement, which is also sold as a standalone, call Customer Service at 800-543-6862 for pricing of PIN #0006801214509. Click HERE to peruse the Table of Contents.

FAQs ON EMPLOYMENT

***Note: All references below to the “handbook” mean the aforementioned special supplement.***

1. If the payroll comes from a PEO, do I need to join the servicing agent(s) of the PEO and the special employer?

If the PEO’s insurance company is paying benefits, there is no need to join the servicing agent or special employer. If a PEO or employee leasing company claims to be self-insured, investigate that claim. Labor Code section 3701.9, effective 1-1-2013, prohibits PEOs and employee leasing companies from self-insurance. If no benefits are being paid on account of an injury, counsel for the injured worker should name the PEO or employee leasing company, the special employer and its insurer, and any servicing agent of the PEO and their insurer as parties because there is joint and several liability between the general and special employers.

2. If the employee leasing company is paying benefits to an injured leased employee, do I need to file a petition to join the special employer and its insurance company?

No. As provided in Labor Code section 3602(d)(1), the general employer likely has coverage for the special employer’s employees, and employment of the injured worker is established by contract between the general and special employers.

3. The injured worker is a gardener who is paid $240 per month to mow the homeowner’s front and back yards, and trim bushes when needed. One day, the gardener falls off a ladder while trimming a tree on the homeowner’s property. Is the gardener covered for workers’ compensation benefits under the homeowner’s liability insurance policy?

Labor Code sections 3351(d) and 3352(a)(8) are applicable and the criteria in Section 3352(a)(8) is determinative. If payment to the gardener exceeds $100 during the 90 days prior to the date of injury and the gardener worked more than 52 hours during the same 90 days, the gardener is an employee of the homeowner. Coverage B of the homeowner’s insurance policy will cover the injured worker’s work-related injuries.

4. What records do I need to subpoena or otherwise obtain in an employee leasing case where neither the leasing company nor the place where the injured worker got hurt are paying benefits?

Counsel for the injured worker will need to obtain: (1) any proof of who paid the injured worker, which may be a paycheck stub, IRS Form 1099, IRS Form W-2, or other means of admissible evidence; (2) contracts between the general employer and special employer that established an employee leasing arrangement, which can be obtained by subpoena; and (3) the underwriting files of the insurers of the general employer and special employer, which can also be obtained by subpoena.

5. A roofing subcontractor’s employee fell off the roof and was severely injured. The subcontractor does not have a contractor’s license nor workers’ compensation insurance. Does the general contractor have liability for the injured worker’s workers’ compensation benefits?

Yes. Labor Code section 2750. 5 provides a rebuttable presumption that a worker performing services for which a contractor’s license is required is an employee rather than an independent contractor or subcontractor. Business and Professions Code sections 7050 et seq. specify the types of work that require a license. If a subcontractor does not have a license from the State Contractor’s Board or workers’ compensation insurance, liability for injuries to a subcontractor’s worker is imputed to the general contractor.

6. Same question as #5 but: What if the general contractor also does not have workers’ compensation insurance and the job was for a dwelling? Is the homeowner liable for the subcontractor’s employee’s injuries?

Yes. Labor. Code sections 3351(d) and 3352(a)(8) govern whether a homeowner will have liability when a worker is injured on the homeowner’s premises. Section 3352(a)(8)’s criteria of 52 hours worked and $100 in wages for the 90 days before the date of injury are used to determine the homeowner’s liability to the injured worker under Section “B” of the homeowner’s policy.

7. Same question as #5 but: What if the job was not for a dwelling but for a commercial building?

Assuming the subcontractor’s employee is injured at a commercial building and neither the subcontractor nor the general contractor has workers’ compensation insurance coverage, the injured worker’s case would probably fall under the Uninsured Employers Benefits Trust Fund. Additionally, there may be a liability case against the owner of the building in the civil court for negligence.

8. What should judges do when they get an employee leasing case where the leasing company refuses to pay benefits, claiming there is no employment, or in any case where the hirer claims the injured worker is an independent contractor?

Employee leasing cases tend to be complex because there are often multiple defendants who point the finger at each other rather than take legal responsibility to provide benefits to an injured worker. The judge has two main responsibilities. The first is to take control over discovery and make sure all proper parties are named and joined in the action. Insurance Code section 11663 provides that liability for workers’ compensation insurance follows payroll. The entity that pays payroll to the injured worker must be named and joined in the action. Similarly, there is often an entity where the worker performed their job duties and sustained the industrial injury. That entity and its claims administrator should be joined as a special employer if the payroll (general) employer is not paying benefits. Second, if the independent contractor defense is asserted by a hirer, the judge must identify the evidentiary basis of the defense. If the nature of the work is in the construction trades industry, the judge should consult Labor Code section 2750.5 to ascertain whether a license is required. See Part VI in this handbook.

9. Whenever I have a case where employment is denied, should I consider the Borello factors? If so, why?

Yes. Although Borello was published in 1989, it remains a seminal authority in workers’ compensation claims. In most cases where employment is denied, the Borello factors apply, and the ABC test does not. Case law arising from wage and hour disputes and in workers’ compensation cases since 1989 tend to revert to an analysis of the Borello factors. This is true even though the Martinez and Dynamex cases were decided decades later. So the Borello factors remain the guideposts for determining if a worker is an employee or independent contractor of a hirer. Much of this may change when the Castellanos case is decided by the California Supreme Court on the status of app-based drivers.

10. How do I handle the fact that Labor Code sections 2775-2787 codified Dynamex and how do I apply these statutes to specific cases?

Start with the type of work the injured worker performed in your case and determine if it is included within Labor Code sections 2775-2787. Read these sections carefully because the different professions, occupations, or trades are scattered throughout the statutes. If the injured worker’s job classification is listed in one of the statutes, then the injured worker is exempt from the ABC test and the Borello factors apply instead. Always start with Section 2775, which sets the stage for your analysis going forward in these statutes that codified Dynamex.

11. Do I need to produce the injured worker at an arbitration on the issue of employment and insurance coverage if the parties agree to submit both issues to an arbitrator?

No. The deposition of witnesses including the injured worker is admissible in arbitration proceedings. Counsel is reminded that arbitrators charge by the hour and the cost of the arbitration proceedings are borne by the employer and insurer communities. In most arbitrations, the deposition transcript of the injured worker and the medical-legal reporting of physicians are admissible in arbitration proceedings.

However, a party who wishes to augment the record by taking testimony via depositions of witnesses may do so once an arbitration proceeding has been instituted. Usually, the party who was not elected against (in a cumulative trauma injury case) is allowed to reopen discovery to include deposing witnesses, the injured worker, and physicians. Further, the un-elected defendant may petition the WCAB for an order for a panel QME since they did not participate in discovery once the applicant elected to proceed against another defendant. See § 130 in this handbook.

In 23 years of conducting arbitrations, this author had fewer than five cases that involved live testimony of witnesses at the arbitration proceeding itself.

12. Should applicant’s attorneys name both the general and special employers in a case involving injuries to a leased employee?

If the injured worker is receiving benefits from the claims administrator for the general employer, it is safe for the injured workers’ attorney to leave the special employer and its claims administrator out of the case. Only when the general employer is not providing benefits or is denying employment should counsel name both the general and special employers and their claims administrators.

13. What information do I need if the injured worker worked at a job where their paychecks came from a payroll company and not from where they worked?

Counsel should name the entity who paid the injured worker at the time of injury or during a cumulative trauma period. If the case is a new claim, counsel must wait to see if the payroll company has coverage pursuant to Labor Code section 3700. Sometimes, it is best practices to name both the payroll company and the entity where the injured worker actually performed duties in case there is a problem with coverage of the claim.

14. How can I find out if an employer is self-insured and who administers their claims?

See https://www.dir.ca.gov/osip/database/sisr/default.aspx. This website lists whether a particular entity is self-insured, which means that the entity has a certificate of consent to self-insure issued by the Director of the Department of Industrial Relations. See Labor Code section 3701 et seq. Once you enter the website, you can use a link to determine who administrates the self-insured employer. The link will indicate whether the self-insured employer is self-administered or whether there is a third-party administrator (TPA). Counsel should note that TPAs are not mentioned much in the Labor Code, except under Labor Code section 3702.1, which describes the qualifications and role a TPA must have.

Counsel is also reminded that a TPA is not a party to a workers’ compensation case. The entity that the TPA administrates for is the real party in interest and is named as such in the official workers’ compensation case. See also California Code of Regulations, title 8, section 10305(e).

15, How does an injured worker meet their burden of proof in order to get a presumption of employment?

Labor Code section 3357 creates the presumption of employment: “Any person rendering service for another, other than as an independent contractor is presumed to be an employee.”

Every word in a statute has meaning. The operative phrase in Section 3357 is “any person who renders service for another” is an employee. That is the broadest scope of a potential relationship between a hirer and a worker. The goal of Labor Code Division 4 is to protect injured employees with workers’ compensation coverage pursuant to Labor Code section 3700. By the nature of Section 3357, the burden of proving employment is on the injured worker, but the burden of proving that a worker is an independent contractor shifts to the hirer. So any type of “service” by one person to another triggers the employment presumption. It is not a difficult burden to prove. On the other hand, the hirer has a more difficult burden of proving independent contractor status of a worker, especially having to show “yes” on each ABC test under Dynamex or going through each of the Borello factors for the exceptions to the ABC test in Labor Code sections 2775 through 2787.

16. How can I tell if an injured worker requires a license to perform their duties? What if they do not have a license that is required? Where do I look?

See Labor Code section 2750.5 and Business and Professions Code section 7000 et seq. The Business and Professions Code has separate sections that define who is required to possess a contractor’s license—general or specialty trade (such as but not limited to electrical, plumbing, engineering, painting, roofing). If the injured worker is required to have a license to perform their duties and/or they are not working under a person who possesses a current valid contractor’s license, liability for work related injuries by the worker are covered by the unlicensed contractor or the person or entity that hired the unlicensed contractor.

17. Suppose there is a party planner Company A, who contracts with a customer in San Francisco to provide a tent, tables, chairs, a stage, and all the accoutrements for a large party. The party planner Company A contracts with Company B to drive the equipment in Company B’s truck from Bakersfield to San Francisco. Injured worker works for Company B and is paid salary by Company B. When they start loading Company B’s truck, they realize the truck is too small for the load. At the yard, Company A has a larger truck. Company A gives permission for Company B’s truck driver to drive their truck to San Francisco and deliver the party goods. Company A has workers’ compensation insurance coverage. While driving to San Francisco, injured worker gets into a fatal vehicle accident. Company B has no workers’ compensation insurance. Is the party planning Company A also liable for the death of worker?

It is possible that Company A may be considered a dual employer of the deceased truck driver. Since liability follows payroll, Company B is clearly the employer of the driver, but the question is when a subcontract occurs as it appears to be the case here—Company A loans their truck to Company B—hypothetically, management from both Company A and Company B have joint control over the truck driver.

Applying the Borello factors may result in both companies being jointly liable for the death benefits. Company A may be an employer of the deceased driver as they had control over the means of obtaining the desired result. Company A did have control over how the party equipment was to get to the location in San Francisco when they allowed Company B and Company B’s driver to use Company A’s truck to transport the equipment. The Uninsured Employers Benefits Trust Fund should be joined since Company B (who paid the deceased employee his salary) did not have compensation insurance coverage for its employees. The trial judge would have to determine what consideration, if any, was paid by Company B to Company A for the use of its larger truck. There would have to be some evidence adduced at trial and during discovery as to the agreement between Company B and Company A whereby Company A loaned their truck to Company B.

18. What constitutes employment created by contract?

A contract can be created by oral or written agreement, by statute, or by behavior. Offer, acceptance, and consideration are the requisite elements of a contract. In the context of an employment contract, the analysis begins with Labor Code section 3357, which states: “Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.” Contrast that language with Labor Code section 3353: “Independent contractor means any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.”

Both opposites must be teased apart under the triad of offer, acceptance, and consideration and then the separate analysis of whether the agreement constitutes an independent contractor relationship between the parties or one in which the worker is an employee of the hirer. In most circumstances, the Borello factors will apply to determine the existence of an employment relationship. If an employment relationship exists, the hirer is liable for workers’ compensation benefits to an injured worker.

19. What constitutes employment created by statute?

Both Labor Code sections 3351 and 3351.5 are examples of employment relationships between a hirer and worker that are created by contract—“under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.” Notice that the statute also includes “unlawfully” employed. The word “employed” implies the basic “suffer and permit to work” doctrine described in detail in the Martinez case where a worker is asked by a hirer to do something and get paid for doing that something. Many sections of the Labor Code (see Sections 3350-3370.1) create employment by statute. One clear example is Labor Code section 3366, which creates an employment relationship between a worker and a law enforcement agency where the worker is “deputized” by a law enforcement officer to assist in active law enforcement activities.

20. What constitutes employment created by conduct?

Several examples of employment created by conduct are discussed in the text of this handbook. One is where the volunteer mom is asked to be a spelling bee judge and is injured during the spelling bee in a fall off a stage. See § 84 in this handbook. Another example is the county inmate who was required to perform duties during a Salvation Army rehabilitation program that was not required as a part of his sentencing for a criminal conviction. See § 77 in this handbook.

21. What are the possible outcomes of the Castellanos case?

It is possible that the Supreme Court of California will uphold the constitutionality of Proposition 22—that app-based drivers are independent contractors and not employees of the network companies. It is also possible that the Court will declare Proposition 22 entirely or partially unconstitutional, resolving the issue of whether a voter initiative takes precedence over a constitutional mandate (Article XIV, Section 4) that the legislature create a workers’ compensation system for the workers of this State. It is also possible that the Court may borrow some arguments made before the Supreme Court of the United Kingdom, which found that Uber drivers are employees of Uber and are not independent contractors. It is possible that the Court’s decision in Castellanos, whatever it will be, may end up at the United States Supreme Court. See § 41[22] in this handbook.

22. How can I tell if the “ABC test” applies in a case and what do I do if it does not apply?

At the present, the ABC test does not appear to be applicable in most workers’ compensation cases in the context of workers’ compensation liability between a hirer and a worker. Many professions, occupations, and trades are statutorily exempt from application of the ABC test. Those exceptions are listed in Labor Code sections 2776-2787, and they should be carefully reviewed to determine if a given type of work is exempt. The rule is simple: If the ABC test does not apply, the Borello factors apply to determine if a worker is an independent contractor or an employee of a hirer. Any type of work that is deemed exempt from the ABC test in Sections 2776-2787 is subject to the Borello factors. The mantra for counsel and judges is: When in doubt, apply the Borello factors. See §§ 31 and 33 in this handbook.

23. What statute(s) applies if a worker or hirer is required to possess a valid license?

Always begin the inquiry by reviewing Labor Code section 2750.5. That section directs the reviewer to the Business and Professions Code, which governs general, special, and trade contractors in the construction industry. If a hirer is required to have a contractor’s license and does not have one and a worker is injured on the job, the contractor or homeowner or owner of the property may be jointly liable for workers’ compensation benefits to the injured worker of an uninsured contractor. In addition, if there is an unlicensed, uninsured subcontractor whose employee gets injured on the job, the general contractor will be liable for the injured worker’s work-related injuries.

24. I have a homeowner case. Where do I look for liability for work-related injuries of a worker who performs work at a house?

The analysis is a multi-step process. Begin the analysis with Labor Code section 3351(d) and read it together with Labor Code section 3352(a)(8). Those two sections are “married” to each other for any work that is performed on/in a dwelling house. A gardener, “cleaning lady,” or nanny could all be considered the homeowner’s employee if they are injured while performing their duties at a home and they work more than 52 hours in the 90 days prior to the date of injury and earn more than $100 during that time. Liability for cumulative trauma injuries for domestic workers is governed by Labor Code section 5500.6. This section says the “last standing” insured homeowner is liable provided that the criteria for Section 3352(a)(8) are satisfied.

25. I represent a finish carpenter in a cumulative trauma orthopedic injury case who works at various job sites both for a flooring company and under various general contractors. Who do I name as defendants?

This question is complicated and in the nature of a law school final exam question. It is also a potential nightmare for the injured worker’s attorney. As discussed in this handbook, many employers have site specific insurance policies that cover all trades who work at a given construction site. The employer has a different insurance policy that covers the same employees if they are not working under an Owner Controlled Insurance Program (OCIP) or General Contractor’s Controlled Insurance Program (GCCIP). The same employer may send their employees to various job sites where, although the payroll is coming from the same employer, the workers’ compensation insurance coverage is under an OCIP or under a GCCIP. The defendant in these cases is the company who employs and pays payroll to the injured worker. The difficult aspect of the case is identifying the applicable insurance coverage. Unfortunately, the WCIRB records of insurance coverage by employer do not differentiate between a policy that covers employees who are working in non-OCIP jobs and those who work at site specific projects. Therefore, counsel needs to obtain more information from the employee’s employer to determine which workers’ compensation insurance policy applies to the injury claim. See § 57 in this handbook.

26. What does “suffer or permit to work” mean?

In Martinez v. Coombs (2010) 49 Cal. 4th 35, 109 Cal. Rptr. 3d 514, 231 P. 3d 259, 75 Cal. Comp. Cases 430 (Martinez), the Court discussed the standard meaning of the term “suffer or permit to work” as follows: “A proprietor who knows that persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage, clearly suffers or permits that work by failing to prevent it, while having the power to do so.” See § 32 in this handbook.

In Dynamex the Supreme Court describes scenarios that essentially cover the list of factors set out in Borello and Martinez to determine the existence of an employment relationship. For example, what is the relationship between the parties and who has control over the development and implementation of the relationship between the parties? What are the relative bargaining positions of the hirer and the worker? See § 33 in this handbook.

27. What if the answer to each of the ABC test is “Yes?”

The ABC test presumptively considers all workers to be employees, and permits workers to be classified as independent contractors only if the hiring business demonstrates that the worker in question satisfies each of three conditions:

(A) That the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work, and in fact; an

(B) That the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Counsel is cautioned that in the context of workers’ compensation cases, the Borello factors apply to determine if a worker is an employee of a hirer. The injured worker has the burden of proving that the worker is an employee of the hirer and then the burden of proof shifts to the hirer to prove the worker was an independent contractor at the time of an alleged industrial injury. See § 33 in this handbook.

28. An Uber driver is waiting for a rideshare customer and is pulled over to the curb in a high crime area. A criminal tried to carjack the Uber driver’s vehicle and instead of taking the car, the criminal shot and killed the Uber driver. The Uber driver is survived by a wife and two young children. Do the driver’s widow and dependent children have a workers’ compensation death benefits case against Uber Technologies, Inc.?

Such an incident occurred in close proximity to a WCAB District Office. The perpetrator was never caught and whether the widow and children of the deceased Uber driver filed a workers’ compensation death benefits case against Uber is unknown. However, under Proposition 22, the Uber driver is deemed an independent contractor and his family is not entitled to workers’ compensation death benefits under Labor Code sections 4701 and 4702. See Business and Professions Code section 7451. Proposition 22 does require network companies to “carry, provide, or otherwise make available” accidental accident or accidental death insurance coverage while an app-based driver is online and available to receive rideshare or delivery services requests or is “actually engaged” in a work assignment. See Business and Professions Code section 7455(b). See § 41 in this handbook.

The constitutionality of Proposition 22 is at issue in Castellanos v. State of California, Protect App-Based Drivers and Services, et al. (2023) 89 Cal. App. 5th 131, 305 Cal. Rptr. 3d 717, 88 Cal. Comp. Cases 348. A decision before the California Supreme Court is pending in the case. See § 41[22] in this handbook.

29. What is an “Information Page” in an insurance policy? What is a “restrictive endorsement” How do I find out if they exist? What are the consequences of them?

An Information Page of an insurance policy indicates what kind of insurance coverage exists, who it applies to, the term of coverage, and when renewal is determined. An Information Page can constitute hundreds of pages because terms applicable to the policy may be updated on an annual basis. Workers’ compensation insurance policies renew automatically every year on the anniversary date of the policy’s inception date of coverage. Counsel will need to obtain the application for insurance, along with the Information Page, for a specific employer to determine the details of coverage for work injuries that occur in California for the insured employer’s employees and to ascertain whether coverage extends to out of state workers. See § 53[4][c] in this handbook.

A restrictive endorsement limits insurance coverage under a policy. Restrictive endorsements need to be approved by the California Department of Insurance through application with the WCIRB. This is accomplished by an insurance broker for the employer or directly through the underwriting department of the insurance company for the employer. Otherwise, in the absence of a restrictive endorsement, workers’ compensation insurance policies are unrestricted and apply to all employees who work for the insured employer in California. See § 53[4][d] in this handbook.

30. Can ERISA preempt California’s workers’ compensation mandate?

In fact, ERISA does not automatically preempt state workers’ compensation laws. The statute, 29 U.S.C. § 1003(b)(3), says ERISA does not apply to any employee benefits plan if “such plan is maintained solely for the purpose of complying with applicable workmen’s compensation laws or unemployment compensation or unemployment compensation or disability insurance laws.” Contrary to claims of “exemption” by some employers, no ERISA plan can preempt California’s mandatory insurance coverage laws under Labor Code section 3700. See Employee Staffing Services, Inc. v. Aubry, 10 F.3d 103 (9th Cir. 1994), discussed in § 55 in this handbook.

31. Can I go to trial on employment and insurance coverage at the same time?

The problem is that disputes over insurance coverage must be heard via arbitration proceedings pursuant to Labor Code section 5275(a)(1). Nonetheless, the author’s experience as an arbitrator and judge is that when the issue of employment is resolved, issues of insurance coverage are generally resolved at the same time as well. At the WCAB, employment is usually determined first by a judge and then if coverage is still in dispute, the matter will be referred for mandatory arbitration on the issue of insurance coverage under Labor Code section 3700.

An exception occurs when the parties agree to go to arbitration on both the employment and insurance coverage issues. Voluntary arbitration of both issues simultaneously can save the defendants costs and attorney’s fees. However, generally speaking, most defense counsel prefer to litigate the issue of employment first at the WCAB and then, if necessary, go to arbitration on any remaining coverage issues. See § 136 of this handbook.

32. Can a hirer choose to cover independent contractors with workers’ compensation insurance coverage?

Yes. In fact, Labor Code sections 4150 to 4157 allow a hirer and a worker to agree to be subject to the provisions of the Workers’ Compensation Act (Division 4 of the Labor Code) when ordinarily the worker is not subject to mandatory workers’ compensation coverage by a hirer. This includes people who may be a legitimate independent contractor of a hirer. Sections 4150 to 4157 are discussed in Part VII of this handbook.

33. Can a county jail inmate be considered an employee of the County if the inmate works during their jail term and sustains a work-related injury?

It depends. The determinative factor is whether the work was compulsory or voluntary. Compulsory work by a jail inmate usually means the work was ordered by the sentencing judge and is part of the inmate’s punishment for committing a crime for which a jail sentence was imposed by the Court. Voluntary work by a county jail inmate that is not part of their sentence for the crime, if “compensated,” is subject to protection as a county employee if the inmate sustains a work-related injury. The term “compensation” can mean a reduction in the jail sentence, a stipend for work performed, free cartons of cigarettes, isolation and protection from gang members, a decent sleep schedule, or being allowed to be housed outside the jail itself but under supervision at the workplace. State prison inmates who are on a fire suppression crew, are employees of the State of California Department of Corrections and Rehabilitation. See Labor Code section 3365(a). See § 90 in this handbook.

34. Can a volunteer parent at an elementary school who is injured on the school premises while performing volunteer activities for the PTA be considered an employee of the school district?

This is an interesting issue. The case law indicates that volunteers who are permitted to perform volunteer activities at a school are considered employees of the school district if and only if the Board of Education had previously passed a resolution that considers parent volunteers as employees of the school district. This handbook in § 84 discusses a recent case in which the school district Board of Education had designated school volunteers as employees of the school district decades before the date of injury.