California: Dual Employment and the Six-Month Employment Requirement

WCAB protects temporary and leased employees from shifting general and special employers who could game the system to avoid potential liability

In Martinez v. Mass Precision, 2014 Cal. Wrk. Comp. P.D. LEXIS –, a split panel WCAB affirmed the WCJ’s determination and held that the applicant’s claim against the general employer SCI @ Balance Staffing Services for a psychiatric injury stemming from orthopedic injuries incurred on 11/30/2009 and cumulatively over a period ending 11/30/2009, while applicant was working for the special employer Mass Precision, was not barred by the six-month employment requirement in Labor Code § 3208.3(d) even though the applicant had been employed at Mass Precision through SCI for fewer than six months.

The applicant had previously been employed by Mass Precision directly (from 3/17/2008 through 3/12/2009) before returning to employment on 6/19/2009 through SCI. The majority of the WCAB panel, relying on Martinez v. Tarrant Apparel dba Fashion Resource, 2010 Cal. Wrk. Comp. P.D. LEXIS 192 (Lexis Advance), 2010 Cal. Wrk. Comp. P.D. LEXIS 192 (lexis.com) (Appeals Board noteworthy panel decision) (employer held liable for applicant’s psychiatric injury suffered after only two days of regular employment, because applicant had been performing duties for employer for more than six months as special employee), concluded that the total time the applicant was employed by Mass Precision by dual and regular employers counted toward the six-month employment requirement.

The majority of the WCAB panel held that Labor Code § 3208.3(d) extends the requisite employment period in cases of dual employment to the entire period of employment by both the general and special employers. According to the WCAB, the purpose behind the six-month employment requirement of avoiding fraudulent claims by newly hired employees is not applicable to a long serving “dual employee” who has performed the same job duties at the same place of employment but for the shifting special and general employers. The WCAB held that barring employees’ claims under these circumstances would provide the employers with the means of “gaming the system” to avoid potential liability for temporary or leased employees without extending workers’ compensation benefits for the protection of persons injured in the course of their employment.

The dissenting Commissioner would reverse the WCJ’s determination and thereby bar the applicant’s claim for psychiatric injury on the basis that the applicant had been employed for less than six months with the general employer SCI @ Balance Staffing Services and SCI @ Balance Staffing Services had no other relationship with the applicant. The dissent argued that Martinez v. Tarrant Apparel dba Fashion Resource was distinguishable because Tarrant Apparel had employed the applicant as a special employer for more than six months just prior to hiring the applicant as a regular employee two days prior to her industrial injury. Thus, the applicant worked for the same employer, Tarrant Apparel, changing from a special employee to a regular employee.

Read the Martinez noteworthy panel decision.

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