![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]>
Not a Lexis+ subscriber? Try it out for free.
LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
While the “Borello” analysis is certainly important, especially in the present day “gig economy” where so many individuals are classified as independent contractors, we can’t lose sight of the fact that it is the existence of a consensual employment relationship that is key to the WCAB’s jurisdiction over a claim. The recent panel decision, Mateus v. High Sierra Pack Station, 2021 Cal. Wrk. Comp. P.D. LEXIS 5 (Appeals Board panel decision) offers important guidance in addressing that critical question.
Here is our headnote for the Mateus decision:
Employment Relationships—Employees—WCAB affirmed WCJ's finding that applicant failed to meet his burden of proving that he was employed by defendant on 9/17/2018, which was date he claimed to have suffered injury to his feet and toes, when evidence indicated that applicant owned horseshoeing business and occasionally worked as packer for defendant, that on date of applicant's injury he accompanied group of campers on pack trip arranged by defendant, stayed with group and worked at campsite cooking and tending to camp, that after trip defendant's owner paid applicant finder's fee of $300.00 but did not pay applicant for his time at campsite, that applicant believed he would be paid for his work time, but at no time did he actually discuss payment with defendant's owner, and that defendant's owner never requested applicant to stay with group or hire him to do so, and, based on this evidence, WCAB panel majority determined that record did not support existence of employment relationship under Labor Code § 3351 because there was no agreement regarding employment between applicant and defendant given lack of offer and acceptance, lack of consideration and absence of meeting of minds; Commissioner Dodd, dissenting, would rescind WCJ's decision and return matter to trial level, when Commissioner Dodd found that while employer may overcome Labor Code § 3357 presumption of employment by showing there was no contract of hire, there must be further analysis in this case to determine nature of parties' relationship, especially given applicant's belief that he was employee and lack of explanation in record as to why applicant would undertake to work on camping trip without pay, and fact that WCJ made no specific findings regarding whether applicant's services benefitted defendant, whether applicant was independent contractor, or whether applicant's services fell within any exclusion to coverage.
Reminder: Board panel decisions are not binding precedent.
© Copyright 2021 LexisNexis. All rights reserved.