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New title! Complex Employment Issues for California Workers' Compensation

October 08, 2024 (7 min read)

COMPLEX EMPLOYMENT ISSUES FOR CALIFORNIA WORKERS' COMPENSATION

A new softbound supplement to Rassp & Herlick, California Workers’ Compensation Law

284 pages

PIN #0006801214509  

For current pricing and to order, call 800-543-6862.

We are pleased to announce that LexisNexis/Matthew Bender & Company has released a brand-new handbook as part of the Rassp & Herlick treatise called Complex Employment Issues for California Workers’ Compensation.

This unique handbook on the issues of employment in the context of work-related injuries features the relevant statutes, regulations, and case law that has developed pertaining to the issue of whether a worker is an employee or independent contractor. This is the very first publication that is specifically dedicated to workers’ compensation practitioners that covers all aspects of employment in the context of who is liable for work-related injuries. The issues of employment arise every day at the Workers’ Compensation Appeals Board and there is robust litigation over that issue. This publication is intended for everyone who appears before the Workers’ Compensation Appeals Board or who may adjust claims involving work-related injuries.

Complex Employment Issues for California Workers’ Compensation includes the following features:

  • The presumption of employment and how it can be rebutted.
  • What constitutes an independent contractor?
  • Seminal case law on employment: The BORELLO, MARTINEZ, DYNAMEX
  • The “Gig Economy” and how it is changing the score between worker and hirer.
  • Everything you want to know about Proposition 22.
  • General-Special employment contracts.
  • What are “Professional Employer Organizations” and how do they work?
  • What are the liabilities and rights of employee leasing agreements?
  • What discovery must be conducted in employee leasing or General-Special Employer cases?
  • Specific, up to date case law on different worker-hirer relationships, including work on a homeowner’s dwelling house and the relationship between Labor Code sections 3351(d) and 3352(a)(8).
  • How the arbitration process works in the context of disputes involving employment and insurance coverage for workers’ compensation liability.
  • Frequently Asked Questions in cases when employment is in dispute.

This handbook is a “living document” to be updated periodically after the inaugural edition in 2024. Case law is continuing to develop on issues involving employment, including the Castellanos case, which was decided by the California Supreme Court and declared Proposition 22 constitutional.  

TABLE OF CONTENTS

PART I. INTRODUCTION

§ 1 Purpose and Goals of Handbook

§ 2 Common Law Definitions of Employment—“Suffer or Permit to Work”

§ 3 Statutory Mandates for Employer-Employee Relationships for Purpose of Workers’ Compensation Liability

§§ 4-9 Reserved

PART II. DIVISIONS OF THE LABOR CODE

§ 10 Overview

§ 11 Key Divisions of Labor Code

§§ 12-19 Reserved

PART III. INDEPENDENT CONTRACTOR VERSUS EMPLOYMENT

§ 20 Overview

§ 21 Independent Contractor Status

§ 22 Employment Status Under Division Three: Labor Code Sections 2700, 2750, 2750.5

§ 23 Employment Status Under Division Four: Labor Code Sections 3300-3371.1

[1] Generally

[2] Who Are Employers

[3] Who Are Employees

§§ 24-29 Reserved

PART IV. SEMINAL CASE LAW ON EMPLOYMENT: BORELLO, MARTINEZ, DYNAMEX

§ 30 Overview

§ 31 Borello Case

§ 32 Martinez Case

§ 33 Dynamex Case

§§ 34-39 Reserved

PART V. BALLOT INITIATIVE AND LEGISLATIVE RESPONSE

§ 40 AB 2257: Response to Dynamex

[1] Overview: Labor Code Sections 2776-2787

[2] Employee Versus Independent Contractor: Labor Code Section 2775

[3] Exceptions for Certain Relationships

[a] Bona Fide Business-to-Business Contracting: Labor Code Section 2776

[b] Referral Agency and Service Provider: Labor Code Section 2777

[c] Contract for “Professional Services”: Labor Code Section 2778

[d] Contract Work for Single-Engagement Event: Labor Code Section 2779

[e] Specified Occupations Related to Sound Recordings or Musical Compositions: Labor Code Section 2780

[f] Subcontract in Construction Industry: Labor Code Section 2781

[g] Data Aggregator and Research Subject: Labor Code Section 2782

[h] Other Specific Occupations: Labor Code Section 2783

[i] Contract Between Motor Club and Third Party: Labor Code Section 2784

[4] Retroactive and Prospective Application of Exceptions: Labor Code Section 2785

[5] Injunctive Relief: Labor Code Section 2786

[6] Severability of Article: Labor Code Section 2787

§ 41 Proposition 22: App-based Drivers and the “Gig” Economy

[1] Overview: Business and Professions Code Sections 7448-7467

[2] Purpose of Proposition 22

[3] Independent Contractor Status

[4] Parties Involved

[5] Earnings

[6] Health Care Subsidy

[7] Loss and Liability Protection

[8] Anti-discrimination Policy

[9] Sexual Harassment Policy

[10] Criminal Background Check

[11] Online Training Program

[12] Zero Tolerance Policy

[13] Aid to Law Enforcement

[14] Maximum Hours Per Day

[15] Fraudulent Impersonation of App-based Driver

[16] Definition of Terms

[17] Preemption of Local Law

[18] Reporting of Income

[19] Amendments to Act

[20] Emergency Regulations Regarding Health Coverage

[21] Severability; Exception

[22] Constitutionality of Proposition 22: Castellanos Case

§§ 42-49 Reserved

PART VI. EMPLOYEE LEASING AGREEMENTS

§ 50 Background

§ 51 Professional Employer Organizations (PEOs)

§ 52 General and Special Employers: Key Issues

§ 53 Discovery in Employee Leasing Cases

[1] Overview

[2] Determine Who Paid the Leased Employee

[3] Obtain the Employee Leasing Contracts

[a] Generally

[b] Contracts Involving Third-Party “HR Management Company”

[4] Obtain the Underwriting Files

[a] Generally

[b] Application for Workers’ Compensation Insurance

[c] Information Page

[d] Exclusionary Endorsements

[e] Correspondence with WCIRB or Insurance Commissioner

[5] Amendments to Policies

[6] Subpoenas for Injured Leased Employee’s Personnel Files from General and Special Employers

[7] Payroll Reports for Injured Leased Employee’s Work Periods

[8] Deposition of Underwriting Department Manager

§ 54 Insolvency of General Employer’s Workers’ Compensation Insurer

§ 55 Legitimacy of Certain Employee Leasing Companies; Multiple Employer Welfare Arrangement (MEWA)

§ 56 When Employment and Insurance Coverage Issues Merge

§ 57 Differences from Owner-Controlled Insurance Programs (OCIP) and General Contractor-Controlled Insurance Programs (CCIP)

§§ 58-69 Reserved

PART VII. EVOLVING CASE LAW ON EMPLOYMENT

§ 70 Overview

§ 71 Presumption of Employment: Cristler and Narayan

§ 72 State Law Not Preempted on Independent Contractor Versus Employment

§ 73 Collateral Estoppel on Employment Issue Determined Prior to WCAB Proceedings

§ 74 Job “Tryout” and Employment

§ 75 Relatives Who Work for Employer

§ 76 Undocumented Workers

§ 77 Charitable or Relief Organizations; Salvation Army Case

§ 78 Partnerships, LLCs, and Corporate Officers

§ 79 In-Home Support Services (IHSS) Workers

§ 80 Joint Employment and PEOs

§ 81 Private Citizens as Law Enforcement

§ 82 “Gig” Economy Workers

§ 83 “ABC Test” Post-Dynamex

§ 84 School Volunteers; Spelling Bee Case

§ 85 Internships

§ 86 Homeowner Related Work Injuries

§ 87 Retailer and Vendor

§ 88 Criminal Liability for Failure to Carry Workers’ Compensation Insurance

§ 89 Family Trust as Employer

§ 90 County Inmates

§ 91 Construction Workers and Labor Code Section 2750.5

§ 92 Truck Drivers

§ 93 Gardening Services

§ 94 Television Survival Show Participants

§ 95 Real Estate Sales Agents

§ 96 Off Work Activities of Employees

§§ 97-119 Reserved

PART VIII. ARBITRATION OF DISPUTES INVOLVING EMPLOYMENT ISSUES

§ 120 Introduction

§ 121 Arbitrations Distinguished from Mediations

§ 122 Who Can Become a Mediator

§ 123 Arbitrator Lists; Qualifications; Governing Provisions

§ 124 When Parties Cannot Agree on Selection of Arbitrator

§ 125 Powers of an Arbitrator

§ 126 Who Pays for Arbitrations

§ 127 Issues Subject to Arbitration

§ 128 “Equitable Contribution”

§ 129 Scheduling of Arbitration Hearings

§ 130 Whether Applicant Must Be Produced at Arbitration Hearing

§ 131 Timeframe for Arbitrator’s Decision

§ 132 Contents and Effect of Arbitrator’s Decision

§ 133 Commentary on Rules Related to Arbitrations

[1] Rule Changes Effective January 1, 2020

[2] Mandatory Arbitration

[3] Voluntary Arbitration

[4] Selection of Arbitrator

[5] Disqualification of Arbitrator

[6] Record of Arbitration Proceeding

[7] Arbitrator Fee and Cost Disputes

[8] Appeal of Arbitrator’s Decision, Generally

[9] Appeal of Arbitrator’s Decision in Alternative Dispute Resolution Case

§ 134 Common Scenario Involving Contribution

§ 135 Practical Tips in Arbitration Proceedings

§ 136 Arbitrations When Employment and Insurance Coverage at Issue

§§ 137-139 Reserved

PART IX. FREQUENTLY ASKED QUESTIONS ABOUT EMPLOYMENT

§ 140 FAQs

§§ 141-149 Reserved

PART X. APPENDIX: SELECTED STATUTES

§ 150 Labor Code, Division 3 Employment Relations

§ 151 Labor Code, Division 4 Workers’ Compensation and Insurance

§ 152 Business and Professions Code, App-based Drivers and Services (Proposition 22)

§ 153 Insurance Code, Workers’ Compensation Policies

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