In a 10/23/2018 PANEL decision Perkins v. Don L. Knox, the WCAB discussed the new DYNAMEX employment test recently described in the California Appellate Courts and how the DYNAMEX test may be used in the work comp. setting.
Mr. Perkins worked as a laborer for Don L. Knox [DLK] as a demolition man at a Long Beach work cite. DLK was in the business of remodeling homes and supplied Mr. Perkins with some of the tools used at work. The workers’ comp. Judge [WCJ] had to decide if Mr. Perkins was an employee of DLK or an independent contractor who would not be entitled to workers’ compensation benefits. The WCJ stated that using the DYNAMEX test, Mr. Perkins would be an employee of DLK; using the Borello test the decision became more complicated. Eventually the WCJ found that Mr. Perkins was an employee of DLK.
DLK appealed and the WCAB discussed which test should be used to make the employee/ independent contractor determination.
The Borello test looks at the following factors:
(a) Is the person performing services engaged in a particular occupation such as a plumber or electrician?
(b) Is the type of work he/she is doing done by an independent contractor?
(c) Does the work required advanced skills?
(d) Does the worker bring his/her own tools?
(e) How long does the job last – is the worker there indefinitely?
(f) Is the worker paid by the hour or by the job?
(g) Is the work being done part of the employer’s regular business?
(h) What was the intent of the parties?
In DYNAMEX the Court was determining whether the worker should be covered under California’s wage & hour laws. In this context the Court used the ABC test: A worker is an independent contractor when (a) he is free of control from the employer, (b) performs work not normally done by the employer and (c) is engaged in his own trade or occupation apart from the employer.
The WCAB held that the ABC test would be applied when deciding wage & hour law issues and the Borello test would continue to be applied when deciding employee/independent contractor issues ion work comp.