AB 206: Workers’ compensation: employees.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2018-01-04
Existing law establishes a workers compensation system, administered by the Administrative Director of the Division of Workers Compensation, within the Department of Industrial Relations, to compensate an employee for injuries sustained in the course of his or her employment. Existing law requires an employer to carry workers compensation insurance or secure the payment of compensation for an employee and makes the failure to do so a misdemeanor.
Existing law defines an employee, for purposes of the laws governing workers compensation, to include, among other persons, any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant, except as specified. Existing law excludes from the above definition of employee a person whose employment by the employer to be held liable was during the 90 calendar days immediately preceding the date of injuries, as specified, or was during the 90 calendar days immediately preceding the date of the last employment, as specified, and either was, or was contracted to be, for less than 52 hours or was, or was contracted to be, for wages of not more than $100.
This bill would specify that the above definition of employee applies without regard to immigration status. The bill would also remove the exclusion for an employee who was employed, or was contracted to be employed, for less than 52 hours, include within the above definition of an employee, a person who is a day laborer, as defined, thereby expanding the definition of employee for purposes of the laws governing workers compensation and expanding the scope of a crime. The bill would make additional conforming changes.
By expanding the scope of a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law establishes a workers compensation system, administered by the Administrative Director of the Division of Workers Compensation, within the Department of Industrial Relations, to compensate an employee for injuries sustained in the course of his or her employment. Existing law requires an employer to carry workers compensation insurance or secure the payment of compensation for an employee and makes the failure to do so a misdemeanor.
Existing law defines an employee, for purposes of the laws governing workers compensation, to include, among other persons, any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant, except as specified. Existing law excludes from the above definition of employee a person whose employment by the employer to be held liable was during the 90 calendar days immediately preceding the date of injuries, as specified, or was during the 90 calendar days immediately preceding the date of the last employment, as specified, and either was, or was contracted to be, for less than 52 hours or was, or was contracted to be, for wages of not more than $100.
This bill would specify that the above definition of employee applies without regard to immigration status. The bill would also remove the exclusion for an employee who was employed, or was contracted to be employed, for less than 52 hours, thereby expanding the definition of employee for purposes of the laws governing workers compensation and expanding the scope of a crime.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Employee means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes:
(a)Aliens and minors.
(b)All elected and appointed paid public officers.
(c)All officers and members of boards of directors of quasi-public or private corporations while rendering actual service for the corporations for pay. An officer or member of a board of directors may elect to be excluded from coverage in accordance with paragraph (16), (18), or (19) of subdivision (a) of Section 3352.
(d)(1)Except as provided in paragraph (8) of subdivision (a) of Section 3352, any person person, including a day laborer, employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant. This subdivision applies without regard to immigration status.
(2)For purposes of this section, a day laborer is a person who is directly hired by the home owner or occupant on a one-time basis, to perform general maintenance, repairs, upgrades, gardening, or landscaping, and who does not have a valid business license or contractors license, or is not required to have those licenses for the work performed.
(e)All persons incarcerated in a state penal or correctional institution while engaged in assigned work or employment as defined in paragraph (1) of subdivision (a) of Section 10021 of Title 8 of the California Code of Regulations, or engaged in work performed under contract.
(f)All working members of a partnership or limited liability company receiving wages irrespective of profits from the partnership or limited liability company. A general partner of a partnership or a managing member of a limited liability company may elect to be excluded from coverage in accordance with paragraph (17) of subdivision (a) of Section 3352.
(g)A person who holds the power to revoke a trust, with respect to shares of a private corporation held in trust or general partnership or limited liability company interests held in trust. To the extent that this person is deemed to be an employee described in subdivision (c) or (f), as applicable, the person may also elect to be excluded from coverage as described in subdivision (c) or (f), as applicable, if that person otherwise meets the criteria for exclusion, as described in Section 3352.
(h)This section shall become operative on July 1, 2018.
SEC. 2.Section 3352 of the Labor Code, as added by Section 4 of Chapter 770 of the Statutes of 2017, is amended to read:3352.(a)Employee, excludes the following:
(1)A person defined in subdivision (d) of Section 3351 who is employed by his or her parent, spouse, or child.
(2)A person performing services in return for aid or sustenance only, received from any religious, charitable, or relief organization.
(3)A person holding an appointment as deputy clerk or deputy sheriff appointed for his or her own convenience, and who does not receive compensation from the county or municipal corporation or from the citizens of that county or municipal corporation for his or her services as the deputy. This exclusion is operative only as to employment by the county or municipal corporation and does not deprive that person of recourse against a private person employing him or her for injury occurring in the course of, and arising out of, the employment.
(4)A person performing voluntary services at or for a recreational camp, hut, or lodge operated by a nonprofit organization, exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, of which he or she or a member of his or her family is a member and who does not receive compensation for those services, other than meals, lodging, or transportation.
(5)A person performing voluntary service as a ski patrolman who does not receive compensation for those services, other than meals or lodging or the use of ski tow or ski lift facilities.
(6)A person employed by a ski lift operator to work at a snow ski area who is relieved of, and is not performing any, prescribed duties, while participating in recreational activities on his or her own initiative.
(7)A person, other than a regular employee, participating in sports or athletics who does not receive compensation for the participation other than the use of athletic equipment, uniforms, transportation, travel, meals, lodgings, or other expenses incidental thereto.
(8)(A)A person described in subdivision (d) of Section 3351 whose employment by the employer to be held liable, during the 90 calendar days immediately preceding the date of injury, for injuries as described in Section 5411, or during the 90 calendar days immediately preceding the date of the last employment in an occupation exposing the employee to the hazards of the disease or injury, for diseases or injuries as described in Section 5412, comes within either of the following descriptions:
(A)(i)The employment was, or was contracted to be, for less than 52 hours.
(B)(ii)The employment was, or was contracted to be, for wages of not more than one hundred dollars ($100).
(B)This paragraph does not apply to a day laborer as described in subdivision (d) of Section 3351.
(9)A person performing voluntary service for a public agency or a private, nonprofit organization who does not receive remuneration for the services, other than meals, transportation, lodging, or reimbursement for incidental expenses.
(10)A person, other than a regular employee, performing officiating services relating to amateur sporting events sponsored by a public agency or private, nonprofit organization, who does not receive remuneration for these services, other than a stipend for each day of service no greater than the amount established by the Department of Human Resources as a per diem expense for employees or officers of the state. The stipend shall be presumed to cover incidental expenses involved in officiating, including, but not limited to, meals, transportation, lodging, rule books and courses, uniforms, and appropriate equipment.
(11)A student participating as an athlete in amateur sporting events sponsored by a public agency or public or private nonprofit college, university, or school, who does not receive remuneration for the participation, other than the use of athletic equipment, uniforms, transportation, travel, meals, lodgings, scholarships, grants-in-aid, or other expenses incidental thereto.
(12)A law enforcement officer who is regularly employed by a local or state law enforcement agency in an adjoining state and who is deputized to work under the supervision of a California peace officer pursuant to paragraph (4) of subdivision (a) of Section 832.6 of the Penal Code.
(13)A law enforcement officer who is regularly employed by the Oregon State Police, the Nevada Department of Public Safety, or the Arizona Department of Public Safety and who is acting as a peace officer in this state pursuant to subdivision (a) of Section 830.39 of the Penal Code.
(14)A person, other than a regular employee, performing services as a sports official for an entity sponsoring an intercollegiate or interscholastic sports event, or any person performing services as a sports official for a public agency, public entity, or a private nonprofit organization, which public agency, public entity, or private nonprofit organization sponsors an amateur sports event. For purposes of this subdivision, sports official includes an umpire, referee, judge, scorekeeper, timekeeper, or other person who is a neutral participant in a sports event.
(15)A person who is an owner-builder, as defined in subdivision (a) of Section 50692 of the Health and Safety Code, who is participating in a mutual self-help housing program, as defined in Section 50087 of the Health and Safety Code, sponsored by a nonprofit corporation.
(16)(A)(i)An officer or member of the board of directors, as described in subdivision (c) of Section 3351, if he or she owns at least 10 percent of the issued and outstanding stock of the corporation, or at least 1 percent of the issued and outstanding stock of the corporation if that officers or members parent, grandparent, sibling, spouse, or child owns at least 10 percent of the issued and outstanding stock of the corporation and that officer or member is covered by a health insurance policy or a health care service plan, and executes a written waiver of his or her rights under this chapter stating under penalty of perjury that the person is a qualifying officer or director. The waiver shall be effective upon the date of receipt and acceptance by the corporations insurance carrier. The insurance carrier, with the consent of the individual executing the waiver, may elect to backdate the acceptance of the waiver up to 15 days prior to the date of receipt of the waiver. The insurance carrier, insurance agent, or insurance broker is not required to investigate, verify, or confirm the accuracy of the facts contained in the waiver. There is a conclusive presumption that a person who executes a waiver pursuant to this subdivision is not covered by workers compensation benefits.
(ii)A written waiver that is executed pursuant to this subparagraph, including, but not limited to, a written waiver that was executed prior to January 1, 2017, and is accepted by the insurance carrier on or before December 31, 2017, may be deemed to be accepted by the insurance carrier as of January 1, 2017. The written waiver shall remain in effect until the officer or member of the board of directors provides the corporations insurance carrier with a written withdrawal of the waiver.
(B)Notwithstanding subparagraph (A), an officer or director of a private corporation who is the sole shareholder of the private corporation, unless the officer, director, or private corporation has elected to be subject to liability for workers compensation pursuant to subdivision (a) of Section 4151.
(17)(A)An individual who is a general partner of a partnership or a managing member of a limited liability company who executes a written waiver of his or her rights under this chapter stating under penalty of perjury that the person is a qualifying general partner or managing member. The waiver shall be effective upon the date of receipt and acceptance by the partnerships or limited liability companys insurance carrier. The insurance carrier, with the consent of the individual executing the waiver, may elect to backdate the acceptance of the waiver up to 15 days prior to the date of receipt of the waiver. The insurance carrier, insurance agent, or insurance broker is not required to investigate, verify, or confirm the accuracy of the facts contained in the waiver. There is a conclusive presumption that a person who executes a waiver pursuant to this subdivision is not covered by workers compensation benefits.
(B)A written waiver that is executed pursuant to this paragraph, including, but not limited to, a written waiver that was executed prior to January 1, 2017, and is accepted by the insurance carrier on or before December 31, 2017, may be deemed to be accepted by the insurance carrier as of January 1, 2017. The written waiver shall remain in effect until the general partner provides the partnerships insurance carrier or the managing member provides the limited liability companys insurance carrier with a written withdrawal of the waiver.
(18)(A)(i)An owner of a professional corporation, as defined in Section 13401 of the Corporations Code, who is a practitioner rendering the professional services for which the professional corporation is organized and who executes a document, in writing and under penalty of perjury, both waiving his or her rights under this chapter and stating that he or she is covered by a health insurance policy or a health care service plan. The owner shall provide a copy of the waiver to all other owners of the professional corporation and the professional corporation shall keep a copy of the waiver on file. The waiver is effective upon the date of receipt and acceptance by the professional corporations insurance carrier. The insurance carrier, with the consent of the individual executing the waiver, may elect to backdate the acceptance of the waiver up to 15 days prior to the date of receipt of the waiver. The insurance carrier, insurance agent, or insurance broker is not required to investigate, verify, or confirm the accuracy of the facts contained in the waiver. There is a conclusive presumption that a person who executes a waiver pursuant to this subdivision is not covered by workers compensation benefits.
(ii)A written waiver that is executed pursuant to this subparagraph and is accepted by the insurance carrier on or before December 31, 2017, may be deemed to be accepted by the insurance carrier as of January 1, 2017. The written waiver shall remain in effect until the owner provides the professional corporations insurance carrier with a written withdrawal of the waiver.
(B)Notwithstanding subparagraph (A), an owner of a private professional corporation who is the sole shareholder of the private professional corporation, unless the owner or private professional corporation has elected to be subject to liability for workers compensation pursuant to subdivision (a) of Section 4151.
(19)(A)(i)An officer or member of the board of directors of a cooperative corporation organized pursuant to the Cooperative Corporation Law, as set forth in Part 2 (commencing with Section 12200) of Division 3 of Title 1 of the Corporations Code, who executes a document, in writing and under penalty of perjury, both waiving his or her rights under this chapter and stating that he or she is covered by both a health care service plan or health insurance policy, and a disability insurance policy that is comparable in scope and coverage, as determined by the Insurance Commissioner, to a workers compensation policy. The officer or member of the board of directors shall provide a copy of the waiver to all other officers and members of the board of directors of the cooperative corporation, and the cooperative corporation shall keep a copy of the waiver on file. The waiver is effective upon the date of receipt and acceptance by the cooperative corporations insurance carrier. The insurance carrier, with the consent of the individual executing the waiver, may elect to backdate the acceptance of the waiver up to 15 days prior to the date of receipt of the waiver. The insurance carrier, insurance agent, or insurance broker is not required to investigate, verify, or confirm the accuracy of the facts contained in the waiver. There is a conclusive presumption that a person who executes a waiver pursuant to this subdivision is not covered by workers compensation benefits.
(ii)A written waiver that is executed pursuant to this subparagraph and is accepted by the insurance carrier on or before December 31, 2017, may be deemed to be accepted by the insurance carrier as of January 1, 2017. The written waiver shall remain in effect until the officer or member of the board provides the cooperative corporations insurance carrier with a written withdrawal of the waiver.
(B)Notwithstanding subparagraph (A), an officer or director of a private cooperative corporation who is the sole shareholder of the private cooperative corporation, unless the officer, director, or private cooperative corporation has elected to be subject to liability for workers compensation pursuant to subdivision (a) of Section 4151.
(b)(1)This section shall become operative on July 1, 2018.
(2)A policy or contract that is entered into or renewed in compliance with this section is subject to this section as it read on the date that the policy or contract was entered into or renewed.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SECTION 1.Section 3351 of the Labor Code is amended to read:3351.Employee means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes:(a)Aliens and minors.(b)All elected and appointed paid public officers.(c)All officers and members of boards of directors of quasi-public or private corporations while rendering actual service for the corporations for pay. An officer or member of a board of directors may elect to be excluded from coverage in accordance with subdivision (p) of Section 3352.(d)Except as provided in subdivision (h) of Section 3352, any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant. This subdivision applies without regard to immigration status.(e)All persons incarcerated in a state penal or correctional institution while engaged in assigned work or employment as defined in paragraph (1) of subdivision (a) of Section 10021 of Title 8 of the California Code of Regulations, or engaged in work performed under contract.(f)All working members of a partnership or limited liability company receiving wages irrespective of profits from the partnership or limited liability company. A general partner of a partnership or a managing member of a limited liability company may elect to be excluded from coverage in accordance with subdivision (q) of Section 3352.SEC. 2.Section 3352 of the Labor Code is amended to read:3352.Employee excludes the following:(a)A person defined in subdivision (d) of Section 3351 who is employed by his or her parent, spouse, or child.(b)A person performing services in return for aid or sustenance only, received from any religious, charitable, or relief organization.(c)A person holding an appointment as deputy clerk or deputy sheriff appointed for his or her own convenience, and who does not receive compensation from the county or municipal corporation or from the citizens of that county or municipal corporation for his or her services as the deputy. This exclusion is operative only as to employment by the county or municipal corporation and does not deprive that person from recourse against a private person employing him or her for injury occurring in the course of, and arising out of, the employment.(d)A person performing voluntary services at or for a recreational camp, hut, or lodge operated by a nonprofit organization, exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, of which he or she or a member of his or her family is a member and who does not receive compensation for those services, other than meals, lodging, or transportation.(e)A person performing voluntary service as a ski patrolman who does not receive compensation for those services, other than meals or lodging or the use of ski tow or ski lift facilities.(f)A person employed by a ski lift operator to work at a snow ski area who is relieved of, and is not performing any, prescribed duties, while participating in recreational activities on his or her own initiative.(g)A person, other than a regular employee, participating in sports or athletics who does not receive compensation for the participation other than the use of athletic equipment, uniforms, transportation, travel, meals, lodgings, or other expenses incidental thereto.(h)A person described in subdivision (d) of Section 3351 whose employment by the employer to be held liable, during the 90 calendar days immediately preceding the date of injury, for injuries as described in Section 5411, or during the 90 calendar days immediately preceding the date of the last employment in an occupation exposing the employee to the hazards of the disease or injury, for diseases or injuries as described in Section 5412 and was employed, or was contracted to be employed, for wages of not more than one hundred dollars ($100).(i)A person performing voluntary service for a public agency or a private, nonprofit organization who does not receive remuneration for the services, other than meals, transportation, lodging, or reimbursement for incidental expenses.(j)A person, other than a regular employee, performing officiating services relating to amateur sporting events sponsored by a public agency or private, nonprofit organization, who does not receive remuneration for these services, other than a stipend for each day of service no greater than the amount established by the Department of Human Resources as a per diem expense for employees or officers of the state. The stipend shall be presumed to cover incidental expenses involved in officiating, including, but not limited to, meals, transportation, lodging, rule books and courses, uniforms, and appropriate equipment.(k)A student participating as an athlete in amateur sporting events sponsored by a public agency or public or private nonprofit college, university, or school, who does not receive remuneration for the participation, other than the use of athletic equipment, uniforms, transportation, travel, meals, lodgings, scholarships, grants-in-aid, or other expenses incidental thereto.(l)A law enforcement officer who is regularly employed by a local or state law enforcement agency in an adjoining state and who is deputized to work under the supervision of a California peace officer pursuant to paragraph (4) of subdivision (a) of Section 832.6 of the Penal Code.(m)A law enforcement officer who is regularly employed by the Oregon State Police, the Nevada Department of Motor Vehicles and Public Safety, or the Arizona Department of Public Safety and who is acting as a peace officer in this state pursuant to subdivision (a) of Section 830.39 of the Penal Code.(n)A person, other than a regular employee, performing services as a sports official for an entity sponsoring an intercollegiate or interscholastic sports event, or any person performing services as a sports official for a public agency, public entity, or a private nonprofit organization, which public agency, public entity, or private nonprofit organization sponsors an amateur sports event. For purposes of this subdivision, sports official includes an umpire, referee, judge, scorekeeper, timekeeper, or other person who is a neutral participant in a sports event.(o)A person who is an owner-builder, as defined in subdivision (a) of Section 50692 of the Health and Safety Code, who is participating in a mutual self-help housing program, as defined in Section 50087 of the Health and Safety Code, sponsored by a nonprofit corporation.(p)An officer or member of the board of directors, as described in subdivision (c) of Section 3351, if he or she owns at least 15 percent of the issued and outstanding stock of the corporation and executes a written waiver of his or her rights under this chapter stating under penalty of perjury that the person is a qualifying officer or director. The waiver shall be effective upon the date of receipt and acceptance by the corporations insurance carrier and shall remain effective until the officer or member of the board of directors provides the insurance carrier with a written withdrawal of the waiver.(q)An individual who is a general partner of a partnership or a managing member of a limited liability company who executes a written waiver of his or her rights under this chapter stating under penalty of perjury that the person is a qualifying general partner or managing member. The waiver shall be effective upon the date of receipt and acceptance by the partnership or limited liability companys insurance carrier and shall remain effective until the general partner or managing member provides the insurance carrier with a written withdrawal of the waiver.SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.Employee means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes:
(a)Aliens and minors.
(b)All elected and appointed paid public officers.
(c)All officers and members of boards of directors of quasi-public or private corporations while rendering actual service for the corporations for pay. An officer or member of a board of directors may elect to be excluded from coverage in accordance with subdivision (p) of Section 3352.
(d)Except as provided in subdivision (h) of Section 3352, any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant. This subdivision applies without regard to immigration status.
(e)All persons incarcerated in a state penal or correctional institution while engaged in assigned work or employment as defined in paragraph (1) of subdivision (a) of Section 10021 of Title 8 of the California Code of Regulations, or engaged in work performed under contract.
(f)All working members of a partnership or limited liability company receiving wages irrespective of profits from the partnership or limited liability company. A general partner of a partnership or a managing member of a limited liability company may elect to be excluded from coverage in accordance with subdivision (q) of Section 3352.
SEC. 2.Section 3352 of the Labor Code is amended to read:3352.Employee excludes the following:
(a)A person defined in subdivision (d) of Section 3351 who is employed by his or her parent, spouse, or child.
(b)A person performing services in return for aid or sustenance only, received from any religious, charitable, or relief organization.
(c)A person holding an appointment as deputy clerk or deputy sheriff appointed for his or her own convenience, and who does not receive compensation from the county or municipal corporation or from the citizens of that county or municipal corporation for his or her services as the deputy. This exclusion is operative only as to employment by the county or municipal corporation and does not deprive that person from recourse against a private person employing him or her for injury occurring in the course of, and arising out of, the employment.
(d)A person performing voluntary services at or for a recreational camp, hut, or lodge operated by a nonprofit organization, exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, of which he or she or a member of his or her family is a member and who does not receive compensation for those services, other than meals, lodging, or transportation.
(e)A person performing voluntary service as a ski patrolman who does not receive compensation for those services, other than meals or lodging or the use of ski tow or ski lift facilities.
(f)A person employed by a ski lift operator to work at a snow ski area who is relieved of, and is not performing any, prescribed duties, while participating in recreational activities on his or her own initiative.
(g)A person, other than a regular employee, participating in sports or athletics who does not receive compensation for the participation other than the use of athletic equipment, uniforms, transportation, travel, meals, lodgings, or other expenses incidental thereto.
(h)A person described in subdivision (d) of Section 3351 whose employment by the employer to be held liable, during the 90 calendar days immediately preceding the date of injury, for injuries as described in Section 5411, or during the 90 calendar days immediately preceding the date of the last employment in an occupation exposing the employee to the hazards of the disease or injury, for diseases or injuries as described in Section 5412, comes within either of the following descriptions:
(1)The employment was, or was contracted to be, for less than 52 hours.(2)The employment was, 5412 and was employed, or was contracted to be, be employed, for wages of not more than one hundred dollars ($100).
(i)A person performing voluntary service for a public agency or a private, nonprofit organization who does not receive remuneration for the services, other than meals, transportation, lodging, or reimbursement for incidental expenses.
(j)A person, other than a regular employee, performing officiating services relating to amateur sporting events sponsored by a public agency or private, nonprofit organization, who does not receive remuneration for these services, other than a stipend for each day of service no greater than the amount established by the Department of Human Resources as a per diem expense for employees or officers of the state. The stipend shall be presumed to cover incidental expenses involved in officiating, including, but not limited to, meals, transportation, lodging, rule books and courses, uniforms, and appropriate equipment.
(k)A student participating as an athlete in amateur sporting events sponsored by a public agency or public or private nonprofit college, university, or school, who does not receive remuneration for the participation, other than the use of athletic equipment, uniforms, transportation, travel, meals, lodgings, scholarships, grants-in-aid, or other expenses incidental thereto.
(l)A law enforcement officer who is regularly employed by a local or state law enforcement agency in an adjoining state and who is deputized to work under the supervision of a California peace officer pursuant to paragraph (4) of subdivision (a) of Section 832.6 of the Penal Code.
(m)A law enforcement officer who is regularly employed by the Oregon State Police, the Nevada Department of Motor Vehicles and Public Safety, or the Arizona Department of Public Safety and who is acting as a peace officer in this state pursuant to subdivision (a) of Section 830.39 of the Penal Code.
(n)A person, other than a regular employee, performing services as a sports official for an entity sponsoring an intercollegiate or interscholastic sports event, or any person performing services as a sports official for a public agency, public entity, or a private nonprofit organization, which public agency, public entity, or private nonprofit organization sponsors an amateur sports event. For purposes of this subdivision, sports official includes an umpire, referee, judge, scorekeeper, timekeeper, or other person who is a neutral participant in a sports event.
(o)A person who is an owner-builder, as defined in subdivision (a) of Section 50692 of the Health and Safety Code, who is participating in a mutual self-help housing program, as defined in Section 50087 of the Health and Safety Code, sponsored by a nonprofit corporation.
(p)An officer or member of the board of directors, as described in subdivision (c) of Section 3351, if he or she owns at least 15 percent of the issued and outstanding stock of the corporation and executes a written waiver of his or her rights under this chapter stating under penalty of perjury that the person is a qualifying officer or director. The waiver shall be effective upon the date of receipt and acceptance by the corporations insurance carrier and shall remain effective until the officer or member of the board of directors provides the insurance carrier with a written withdrawal of the waiver.
(q)An individual who is a general partner of a partnership or a managing member of a limited liability company who executes a written waiver of his or her rights under this chapter stating under penalty of perjury that the person is a qualifying general partner or managing member. The waiver shall be effective upon the date of receipt and acceptance by the partnership or limited liability companys insurance carrier and shall remain effective until the general partner or managing member provides the insurance carrier with a written withdrawal of the waiver.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
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Date
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Status
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|---|---|
| Feb 1, 2018 | From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. |
| Jan 31, 2018 | Died pursuant to Art. IV, Sec. 10(c) of the Constitution. |
| Jan 10, 2018 | In committee: Set, second hearing. Hearing canceled at the request of author. |
| Jan 8, 2018 | Re-referred to Com. on INS. |
| Jan 4, 2018 | From committee chair, with author's amendments: Amend, and re-refer to Com. on INS. Read second time and amended. |
| Apr 19, 2017 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Feb 6, 2017 | Referred to Com. on INS. |
| Jan 24, 2017 | From printer. May be heard in committee February 23. |
| Jan 23, 2017 | Read first time. To print. |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
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Organization
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Position
|
Date
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|---|---|---|
| American Civil Liberties Union of California | ** Support | Apr 18, 2017 |
| American Insurance Association | ** Against | Apr 18, 2017 |
| Association Of California Insurance Companies | ** Against | Apr 18, 2017 |
| CA Conference Board of Amalgamated Transited Union | ** Support | Apr 18, 2017 |
| CA Conference of Machinists | ** Support | Apr 18, 2017 |
| California Applicants Attorneys Association Sponsor | ** Support | Apr 18, 2017 |
| California Employment Lawyers Association | ** Support | Apr 18, 2017 |
| California Immigrant Policy Center | ** Support | Apr 18, 2017 |
| California Landscape Contractors Association | ** Against | Apr 18, 2017 |
| California Pool and Spa and Association | ** Against | Apr 18, 2017 |
| Coalition for Humane Immigrant Rights Co-sponsor | ** Support | Apr 18, 2017 |
| Independent Insurance Agents & Brokers of California | ** Against | Apr 18, 2017 |
| International Longshore & Warehouse Union | ** Support | Apr 18, 2017 |
| Liberty Mutual Insurance Company | ** Against | Apr 18, 2017 |
| National Association of Mutual Insurance Companies | ** Against | Apr 18, 2017 |
| National Day Laborer Organizing Network | ** Support | Apr 18, 2017 |
| Pacific Association Of Domestic Insurance Companies | ** Against | Apr 18, 2017 |
| Personal Insurance Federation Of California | ** Against | Apr 18, 2017 |
| Professional & Technical Engineers, IFPTE Local 21, AFL-CIO | ** Support | Apr 18, 2017 |
| Service Employees International Unction | ** Support | Apr 18, 2017 |
| The Teamsters | ** Support | Apr 18, 2017 |
| UNITE-HERE, ALF-CIO | ** Support | Apr 18, 2017 |
| Utility Workers Union of America | ** Support | Apr 18, 2017 |
Date of Hearing: April 19, 2017
ASSEMBLY COMMITTEE ON INSURANCE
Tom Daly, Chair
ABPCA Bill Id:AB 206 (
Author:Gonzalez Fletcher) – As Introduced Ver:January 23, 2017
SUBJECT: Workers’ compensation: employees
SUMMARY: Expands the definition of “employee” for workers’ compensation purposes thereby expanding the scope of standard homeowners’ insurance policies. Specifically, this bill:
- Deletes from the definition of “employee” the exclusion of workers who work for a homeowner for less than 52 hours in a 90 day period.
- States that the definition of “employee” applies without regard to immigration status.
EXISTING LAW:
- Provides for a comprehensive system of workers’ compensation benefits for employees who suffer injuries or conditions that arise out of or in the course of employment.
- Defines “employee” and includes all employees, regardless of immigration status.
- Specifies classes of persons who are expressly NOT employees, and includes among these classes those who work for less than 52 hours, or are contracted to work for less than 52 hours, and who earn under $100, during a 90-day period.
- Provides for the regulation of insurance, and insurers, by the Insurance Commissioner (commissioner).
- Provides that any homeowners’ insurance policy that provides liability coverage shall also provide for workers’ compensation protection to the homeowner for workers’ compensation liabilities to employees employed by the homeowner.
- Provides that homeowners’ insurance rates are subject to a prior approval regulatory program as adopted by Proposition 103 in 1988, as implemented by the commissioner.
FISCAL EFFECT: Undetermined.
COMMENTS:
- Purpose. According to the author, the 52 hour requirement is detrimental to day laborers because they are usually hired to work for short-term jobs. This outdated provision in the workers’ compensation system prevents legitimate day laborers who are injured on the job from obtaining workers’ compensation benefits because these workers are specifically defined as not “employees.” AB 206 is designed to remedy this anachronism in the law.
- Background. There are a range of people who perform work in various contexts who are not eligible for workers’ compensation benefits because they are defined as “not employees.” One such group is excluded because the work they perform is covered by the “52-hour”rule in the Labor Code. In essence, this exclusion provides that certain workers are simply, as a matter of definitional law, “not employees” for workers’ compensation purposes. While there is a certain “I know it when I see it” aspect to identify who a “day laborer” is, actually defining this class of worker is difficult. For example, by merely deleting the 52-hour rule, the following workers, among a fairly large actual list of categories, would now be “employees” eligible for workers’ compensation benefits:
- The teenager you hire to mow your lawn;
- The high school girl who babysits twice a month for you;
- The man who congregates in the Home Depot parking lot who is hired on a 1 or 2 day basis by a roofing contractor;
- The man who congregates in the Home Depot parking lot who is hired by a homeowner for a Saturday to dig trenches for a new sprinkler system;
- The tax preparer who works in tax season out of her home, and who is hired from a Craigslist ad.
- Underground economy and labor law violations. While there is nothing illegal about hiring a day laborer, in reality this is a labor force highly susceptible of being taken advantage of. “Underground economy” employers frequently hire this type of worker for the purpose of avoiding compliance with general employment laws. Even licensed contractors frequently hire day laborers, sometimes in order to supplement their acknowledged workforce with “off-the-books” workers. These arrangements may be analytically different from the lawn mowing teenager, or the homeowner hiring a person for a Saturday to clean out the backyard, and these latter hires may not violate the same labor laws as a contractor who hires an undocumented day laborer, but for workers’ compensation purposes, all of these workers are defined as “not employees” and do not have a right to workers’ compensation benefits if they are injured on the job.
- Homeowners’ insurance. The Insurance Code mandates that if a homeowners’ insurance policy covers liability, then it shall also provide the homeowner with protection against workers’ compensation liability, with the coverage defined by the workers’ compensation laws. Thus, if a homeowner employs an “employee” who has the benefit of the workers’ compensation law, and that employee is injured, then the homeowner as employer is liable for the full and unlimited scope of workers’ compensation benefits. In contrast, if a non-employee is harmed through no fault of the homeowner, there is not liability. But if the non-employee is harmed and the homeowner is negligent, then tort liability attaches.
A typical homeowners’ policy will have a coverage limit – often $500,000 – on the liability coverage, whereas workers’ compensation is by statute unlimited. The primary rule of law that keeps this component of a homeowners’ policy affordable to the homeowner is the 52-hour rule and the fact that homeowners infrequently hire workers for long enough to overcome the 52-hour exclusion. - Insurers objections. Insurers make a series of related objections. First, they argue that any real issue with day laborers being unfairly denied benefits has little to do with homeowners, and a lot to do with both legitimate as well as unscrupulous contractors and other employers. Thus, they point out that it makes little sense to add new costs onto homeowners’ insurance policies due to increasing the extent of covered losses.
Second, they point out that the actual scope of this new exposure is completely unknown, as there has never been any reason to collect the data to show the extent of the additional covered losses that would result from the bill’s proposed changes to the Labor Code.
Third, they point out that the current rate regulation system is a data/claims loss-driven system, and that it would be difficult to accurately identify how much additional premium would be necessary to pay for the mandated increase in loss exposure. Related to this concern, insurers generally have complained that they do not get a fair rate review from the Department of Insurance in the best of circumstances, and that with the loss uncertainty associated with the bill’s coverage expansion, it is unlikely that they will obtain adequate additional premium to cover the newly mandated covered losses. - Contractors’ objections. A range of contractor organizations is concerned that the bill will enable unscrupulous contractors to further abuse the system, shift costs to homeowners, and generally encourage growth in the underground economy. In particular, these groups believe that unscrupulous contractors who perform small jobs for homeowners will be able to successfully shift their own workers’ compensation responsibilities onto the homeowners.
- Undocumented workers. The bill purports to establish that workers’ compensation benefits under the law cannot be denied to a person based on his or her immigration status. That is already the law in California.
REGISTERED SUPPORT / OPPOSITION:
Support
California Applicants Attorneys Association (CAAA) Sponsor
Coalition for Humane Immigrant Rights (CHIRLA) Co-sponsor
American Civil Liberties Union of California
CA Conference Board of Amalgamated Transited Union
CA Conference of Machinists
California Employment Lawyers Association (CELA)
California Immigrant Policy Center (CIPC)
Engineers & Scientists of CA, IFPTE Local 20, AFL-CIO
International Longshore & Warehouse Union
National Day Laborer Organizing Network (NDLON)
Professional & Technical Engineers, IFPTE Local 21, AFL-CIO
Service Employees International Unction (SEIU)
The Teamsters
UNITE-HERE, ALF-CIO
Utility Workers Union of America
Opposition
American Insurance Association
Association of California Insurance Companies
California Landscape Contractors Association (CLCA)
California Pool and Spa and Association (CPSA)
Independent Insurance Agents & Brokers of California
Liberty Mutual Insurance Company
National Association of Mutual Insurance Companies
Pacific Association of Domestic Insurance Companies
Personal Insurance Federation of California
Analysis Prepared by: Mark Rakich / INS. /
Bill Author
Bill Co-Author(s):
