Today's California Earthquake—Compensability of Injuries Sustained by Home-Based Employee

Today's California Earthquake—Compensability of Injuries Sustained by Home-Based Employee

When this afternoon's magnitude 5.8 earthquake hit California (news reports indicate the epicenter was some 29 miles southeast of downtown Los Angeles, near Chino Hills, in San Bernardino County) a few minutes ago (11:42 a.m. PDT), I was safely ensconced in my home office some 3,000 miles to the east in Durham, North Carolina.  Chatting online with me at the time, however, was my long-time colleague, Robin Kobayashi, of LexisNexis, who lives and works in Van Nuys, California.  She felt the tremors, of course, and immediately quipped, "what if a home-based employee ("HBE") felt the tremors, jumped up to try to prevent her tall bookcase of company books from falling on her company-owned computer, and either was injured by the falling books or perhaps she wrenched her back in the process?  Would her injuries be compensable?

I thought "sure." 

Home-Based Employees and the "Going and Coming Rule"

Early HBE cases usually arose within the context of the "going and coming rule" [see Larson's Workers' Compensation Law, § 13.01].  If the employee could successfully argue that his or her home was a satellite or secondary office of the employer's premises, then an injury sustained during the commute to or from the office would be compensable since generally, travel between parts of the employer premises is not bound by the going and coming rule. 

The problem with close adherence to such a dual-premises idea is that, in many contexts, one might just as well jettison the going and coming rule altogether.  After all, our society is replete with the many familiar situations involving teachers who prepare lessons or correct papers at home, lawyers who take home briefs, salespeople who work on accounts at home, and newspaper columnists who polish up a bit of writing at home--all of whom might be tempted under a more vague rule to assert compensation coverage of all their movements to, from or around the house by virtue of some morsel of work carried around in their pockets. As at least one court has indicated, ''[the] contemporary professional frequently takes work home. There, the draftsman designs on a napkin, the businessman [or woman] plans at breakfast, the lawyer labors in the evening. But this hearthside activity--while commendable--does not create a white collar exception to the going and coming rule'' [Santa Rosa Jr. Coll. v. Workers' Comp. App. Bd., 40 Cal. 3d 345, 220 Cal. Rptr. 94, 101, 708 P.2d 673, 680 (1985)].

Arthur Larson, therefore, proposed the question: would the trip to this second business situs (the home) have been made even if the usual personal purpose of going home had in some way disappeared? If it would have, the fact that it coincided with a personally motivated trip home should not alter its compensability.  If the trip to the second business situs would otherwise have been made, then the normal going and coming rule should apply.

Home-Based Employees Injured at Home

When the issue is the status of the home as a place of employment generally, instead of or in addition to the existence of a specific work assignment at the end of the particular homeward trip, three principal indicia may be looked for: the quantity and regularity of work performed at home; the continuing presence of work equipment at home; and special circumstances of the particular employment that make it necessary and not merely personally convenient to work at home [see Larson's Workers' Compensation Law, § 16.10].

  • Quantity and regularity of work performed at home – see, e.g., AE Clevite, Inc. v. Labor Comm'n, 996 P.2d 1072, 2000 UT App. 35 (2000), where a sales manager was permitted to use his home as a base of operations since the employer maintained no office near Salt Lake City. The manager kept company supplies and maintained company records at his residence. On one occasion, the manager expected the mail carrier to deliver an important business package, so he attempted to spread salt on his driveway to melt the ice. As he did so, he slipped and was severely injured. The court determined that since the manager's motivation for clearing the ice was to assist in the delivery of the business package, spreading of the salt was incidental to the manager's usual employment. The court acknowledged, however, that without the established "home office" arrangement between the employer and employee, the case likely would not have been compensable.
  • Continuing presence of work equipment at home – The placing of employment equipment in the home by the employer is strong evidence that the home is a part of the work premises, since it even begins to take on some of the physical appurtenances of a work place. Examples of this kind of evidence include the installation of office equipment [see, e.g., Weimer v. Wei-Munch, Ltd., 117 A.D.2d 846, 498 N.Y.S.2d 547 (App. Div. 1986).  Claimant's office for his corporation's restaurant business was in his home. Business meetings were held there. Employee scheduling, ordering merchandise, and preparation of menus was done there. His home was the corporation's official address, where all business mail was received, all paperwork was done, and business records, files and an adding machine were maintained. A trip between the restaurant and this home office was held covered.].
  • Special circumstances that make the home-based enterprise necessary, not merely convenient - For the telecommuter or other home-based employee, even when the service performed at home is casual or relatively unimportant, an injury occurring in the actual performance of it is usually in the course of employment, although travel to and from home might not be.  For example, a police officer who cleaned a gun at home probably could not assert that the trip home was covered because the officer did this job at home, but if the officer is injured while actually cleaning the gun, the injury is within the course of employment [see Employers Liab. Assur. Corp. v. Henderson, 37 Ga. App. 238, 139 S.E. 688 (1927)], particularly when it was the officer's duty to clean the gun at home [see Borough of Aldan v. Workmen's Comp. App. Bd., 54 Pa. Commw. 622, 422 A.2d 733 (1980)].

Applying these general principles to our hypothetical, the HBE attempting to protect company equipment, who is injured by company books falling during an earthquake, should come within the parameters of the workers' compensation law.  The quantity and regularity of her work would satisfy the first issue.  The presence of equipment at the home would be another strong factor favoring compensability.  The fact that she was injured while actually working, as opposed to taking a shower, walking the dog, or fixing a meal, would be an additional important point in her favor.