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].
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.