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EMPLOYMENT

Whether someone is an employee for the purposes of the workers' compensation law is a fundamental issue. Both "employer" and "employee" have been defined by the Legislature (see below). Generally, anyone "rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee." Labor Code §3357. While LC §3351 speaks of a "contract of hire or apprenticeship, express or implied, oral or written," consideration may be nominal. In disputes over whether someone was an employee, the Board will apply the liberal construction statute, Labor Code §3202: "shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment."

Multiple employers on one job: there may be both a "general" and "special" employer, such as where a worker is hired by one employer and loaned to another. Temporary service agencies fit this model.

The employer has the burden of proving that "an injured person claiming to be an employee was an independent contractor or otherwise excluded from the protection of this division where there is proof that the injured person was at the time of his or her injury actually performing service...."  Labor Code §5705.

See, too, Independent Contractor and AOE-COE

Label Item Links Comments
Labor Code Definition of "employer" LC §3300
  Definition of "employee" LC §3351
LC §3351.5
 
  Excluded employees
LC §3352  
  Presumption of  employment LC §3357  
Regulations/Rules  
Cases  “The possibility of dual employment is well recognized in the case law. “Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers — his original or `general' employer and a second, the `special' employer.” (Miller v. Long Beach Oil Dev. Co. (1959) 167 Cal. App.2d 546, 549 [334 P.2d 695].) In Industrial Ind. Exch. v. Ind. Acc. Com. (1945) 26 Cal.2d 130, 134-135 [156 P.2d 926], this court stated that “an employee may at the same time be under a general and a special employer, and where, either by the terms of a contract or during the course of its performance, the employee of an independent contractor comes under the control and direction of the other party to the contract, a dual employment relation is held to exist. [Citations.]” Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174. Kowalski v. Shell Oil Co.  
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Practice Tips The expedited hearing is the prescribed method for determing issues of employment and whether an injury was AOE-COE.    
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