Workers’ Compensation Lawyer San Diego, CA

Am I an Employee or an Independent Contractor?

California workers' compensation attorneyQ:  I got hurt on the job, but my supervisor says I can't file for California workers’ compensation benefits because I am not an employee. I am an independent contractor. Is that true?

A: More likely than not, NO!

In 2018 the California Supreme Court made a significant ruling which determines when an individual is an employee versus an independent contractor regarding California wage and hour laws. While not directly involving California workers’ compensation laws, it is impactful on such laws and should be argued at all levels of a workers’ compensation case by knowledgeable counsel.

The name of the case is Dynamex Operations West, Inc. v. Superior Court decided in April of 2018.  The case provides for the Hirer (likely an Employer) of the worker, the alleged independent contractor (actually an Employee), to show the following or the hired worker will be deemed to be an employee:

(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

(B) that the worker performs work that is outside the usual course of the hiring entity's business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business.

The hiring entity's failure to prove just one of these three prerequisites will be sufficient in itself to establish that the worker is an included employee, rather than an excluded independent contractor, for purposes of a California wage order.

California workers’ compensation laws are, at the time of the writing of this blog, still bound as to whether a worker is an employee or an independent contractor by the 1989 decision of S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations.

However, much has changed in the world since 1989 with the huge expansion of the 'gig' economy, the internet, cell phones, many workers working from home, etc. The rationale for the decision in Dynamex is a better fit for today's workers' compensation claims then Borello is in applying to the new world economics of 2019.

A good workers' compensation attorney will argue both standards so as to have as many arguments as possible, especially on appeal.

The Law Office of Robert A. McLaughlin attorneys are experienced in California workers’ compensation and wage and hour law and we look forward to representing you if you have a California employer claiming you are not an employee but an independent contractor, whether you have a wage and hour case or a workers’ compensation case.

About our firm

McLaughlin has more than 25 years of experience in workers’ compensation law. His firm also practices in the area of the Longshore Act, Defense Base Act, Non-Appropriated Funds Act, SSDI claims, personal injury, employment law, and wage and hour claims. McLaughlin also previously served as President of the California Applicants’ Attorneys Association’s San Diego County Chapter. In addition, he’s a published academic and a distinguished lecturer on the rights of injured workers.

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