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S. G. Borello & Sons, Inc. v. Dep't of Indus. Relations - 48 Cal. 3d 341, 256 Cal. Rptr. 543, 769 P.2d 399 (1989)


Strong evidence in support of an employment relationship is the right to discharge at will, without cause. Additional factors include (a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee. 


A deputy labor commissioner issued a stop order/penalty assessment against S. G. Borello & Sons, Inc. (Borello), a Gilroy grower, for failure to secure workers' compensation coverage for the 50 migrant harvesters of its cucumber crop. Borello appealed the citation to the Division of Labor Standards Enforcement (Division) of the Department of Industrial Relations. At the administrative hearing, Borello admitted the failure to secure coverage but contended that the workers were independent contractors excluded from the workers' compensation law based on a "sharefarmer" agreement entered into with the workers because based under the statutory "control-of-work" test, the workers managed their own labor, shared the profit or loss from the crop, and agreed in writing that they are not employees. The Division  rejected these contentions. On appeal, the superior court found that the Division's decision was supported by the evidence. However, these rulings were reversed by the appellate court.


Are agricultural laborers engaged to harvest cucumbers under a written "sharefarmer" agreement considered "independent contractors" exempt from workers' compensation coverage?




The Supreme Court of California reviewed and reversed the judgment of the appellate court because plaintiff had failed to meet his burden of proof under the statutory "control-of-work" test. The court observed that harvesting was simple manual labor, the growers exercised persuasive control over the whole operation, and it appeared the sharefarming agreement resulted from no real bargaining. Thus, the court held that the laborers were "employees" because plaintiff retained control over their work. 

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