WCDefenseCA

So, there I was, sitting in my Uncle Olaf’s kitchen as his possibly-independent-contractor scrubbed his prize-winning giant Clams, getting them ready for sale.  Uncle Olaf was beginning to get worried – what if his upstart nephew was right and, even though Uncle Olaf didn’t get insurance for the Clam Cleaner, an employment relationship was formed.  After all, if Mr. Clam Cleaner was an employee, Uncle Olaf would be liable for any injuries sustained by Mr. Clam Cleaner, and, having lost both hands to giant Clam Bites before, was very much aware of the risks involved.

“I’m pretty sure he is an independent contractor,” said Olaf.  Just then we heard a loud *SNAP* as a clam slapped shut, and the young gentleman in the Clam tank yanked his hand away just in time.  Uncle Olaf breathed a sigh of relief and said “but he signed a contract… the contract says ‘I am not an employee; I am an independent contractor.  I will clean Olaf’s clams.  And if I should lose a hand or two, I will only sue the clam or clams that got me, and not poor Uncle Olaf’.”

I shook my head and told poor Uncle Olaf of the panel decision in the case of Leonard Key v. Los Angeles County Office Education. Leonard Key had signed a contract stating that he was an independent contractor paid to teach music lessons at one of the Los Angeles County schools.  However, the Workers’ Compensation Judge found that Mr. Key was, in fact an employee, and his injury was compensable.  Workers’ Compensation in California is compulsory, after all, and Mr. Key was simply an employee by any other name.  And, after all, the farmers in the Borello case, discussed last time, had signed a contract as well.

The most important thing for Uncle Olaf to remember is the guiding policy of workers’ compensation – to shift the costs of industrial injuries to the produces and not the consumers/public.  Even the Legislature might make efforts to amend the law, defining a contractor vs. an employee based on a long list of factors.

So, dear readers, what should Uncle Olaf do?  Before the young gentleman sticks his hand into another one of Uncle Olaf’s clams, should Olaf pull him out of the tank and cease operations until he can get a workers’ compensation policy?