California: Court Interpreter as Employee, Not Independent Contractor, Due to Employer Control

In Hassan v. County of Los Angeles, 2015 Cal. Wrk. Comp. P.D. LEXIS 18 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 18 (Lexis Advance), a split panel WCAB affirmed the WCJ and held that the applicant, a court interpreter, who suffered industrial injury to multiple body parts, was an employee of the defendant County of Los Angeles, and not an independent contractor, because the County exercised control over her work.

The WCAB, relying on the eight specific factors that a decision maker must consider when reaching a determination about the status of a work arrangement that were delineated in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 256 Cal. Rptr. 543, 769 P.2d 399, 54 Cal. Comp. Cases 80 (lexis.com), 54 Cal. Comp. Cases 80 (Lexis Advance), found that the actual arrangement between the applicant and the County was indicative of an employment relationship. The WCAB emphasized that the applicant was required to call in to a central call center each day to obtain work assignments, was required to submit a County-wide form for billing purposes, and was subject to a contract that included nonnegotiable terms and rates.

Applying the secondary Borello factors, the WCAB noted that the applicant was an inherent part of the County’s business since the courts rely upon interpreters to carry out hearings and trials. The WCAB also pointed out that the applicant was not engaged in a unique occupation, could not (according to her contract) leave work before a designated time and was required to check in with a coordinator to receive her next assignment. In addition, the applicant was paid at the same time as all the other employees and submitted her invoice on a form provided by the County, although the County did not withhold taxes from the applicant’s pay.

Furthermore, the WCAB found that independent contractor status was not conferred upon the applicant because she needed to obtain certification and engage in continuing legal education. The WCAB reasoned that this requirement did not make the applicant an independent contractor given that both employees and independent contractors had to be certified in order to perform interpreting services.

Commissioner Lowe, dissenting from the majority panel opinion, concluded on the same record, that the County had set forth sufficient evidence to rebut the presumption that the applicant was a County employee and to establish independent contractor status, based upon the showing that the County had only limited control over the applicant’s work. The dissent pointed out that the applicant had no supervisor overseeing the quality of her interpreting services, that the applicant’s services were more akin to vendor services because the applicant did not exclusively work for the County but rather signed contracts for her services on a day-to-day basis for a limited time span and at a limited capacity, that the applicant worked as a courtroom interpreter for the County, a public entity engaged in the business of adjudicating legal cases, and not language translation, that certified court interpreters are engaged in a skilled profession, and that the applicant provided her own tools for her work (i.e., her skill as an interpreter in addition to her own pens, paper, dictionary and headphones).

COMMENTARY:

In Hassan, the WCJ was confronted with an issue that frequently comes up in workers’ compensation hearings: the sometimes fine distinction between an independent contractor and an employee. Here, the question dealt with a court interpreter for the County of Los Angeles. Other cases have involved taxi cab drivers, urgent care doctors, realtors and the probably the most common occupation, truck drivers.

This case highlights how difficult it is for the WCJ and ultimately the commissioners to decide these cases. As the majority in Hassan points out, the principal test is the degree of control the employer maintains over the manner in which the work is done. The California Supreme Court in Borello set out eight specific considerations that the court is also to look at in reaching a determination. The outcome of a specific case may depend on the specific degree of control an employer maintains over the manner of work but may also be impacted by the specific consideration given to the other factors described by Borello.

Although the majority of commissioners in Hassan mentioned the eight Borello factors, the majority in Hassan placed the focus on the employer control issue. This is really where the majority and the dissent part ways. The dissent, by contrast, emphasized the business of a court, the fact that applicant was in a skilled profession, and the fact that she provided the instrumentalities and tools of her work.

Ultimately, the majority, by placing an emphasis on “necessary control”, took a very broad approach to the question of whether someone is an independent contractor. The majority found that even where an employer is more concerned with the results of the work and not necessarily the means of the work, the worker can still be considered an employee.

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