Managing Employee Injuries and Disability and Occupational Safety

2. I LLEGAL A CTIVITIES

The labor code expressly provides that employees are not to be denied compensation benefits even if their employer and they are engaged in unlawful activities.

Note, however, that if an employee’s illegal activity is intentional or egregious; the misconduct may take him outside the course of employment so that an injury which occurs because of this misconduct may not be compensable. This issue is discussed more fully in Chapter 3.

3. I NDEPENDENT C ONTRACTOR An employee is one who performs services for another and who is subject to the direction and control of his employer as to the manner in which it is done. An independent contractor is also retained to perform a service but is chargeable only with the result and is not subject to the control of the employer in the manner in which details are carried out.

The following factors tend to prove an independent contractor relationship, when the person performing services:

 Controls the details of the work being done,

 Is entitled to payment of a contract fee, lump sum or specific fee as established in the contractual agreement,

 Furnishes his or her own tools or materials,

 Establishes his own work schedule and work hours,



Is generally an expert in the field,

 Has a general regular business or special license and performs the services for many customers,

 And holds self forth as a professional person. 4

4. P RESUMPTION OF E MPLOYMENT

The operation of the Workers’ Compensation Act and the jurisdiction of the Workers’ Compensation Appeals Board in a given case depend on the existence of an injury arising out of and occurring in the course of employment. Occasionally, a case will arise in which the injured contends he is an employee but the alleged employer claims he did not employ the injured. In such a situation, the injured is presumed to be an employee if he shows that he was performing a service for the alleged employer. The alleged employer has the right to counter with evidence tending to negate an employment relationship. The employee may then present evidence to bolster the presumption of employment. Labor Code Section 3357.

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 17