Celebrating 10 years! 2007-2017

California Workmans comp Q

Hoa has valid WC cert from pool cleaner. Several months int 2ski04/25/18
Is this an pool cleaner employed by a separate pool cleaning 2breedbares04/27/18
This situation is the former: Contract holder has employees. 2ski04/27/18
I disagree unless you can show a degree of control the HOA h 2breedbares04/27/18
I see where you are going with control. I'm thinking this a 2ski04/28/18
Were your guys unlicensed? That was a big factor in Heiman. 2breedbares04/30/18
Pool Cleaners are not required to be licensed in Ca. So no 2ski04/30/18
If this pool cleaner has other pools to clean (i.e., its own jeffm04/30/18
What caught my eye is the idea of Hoa becoming a joint emplo 2ski05/01/18
Did you read the new Dynamex decision? Could be helpful to g 2breedbares05/03/18
2ski (Apr 25, 2018 - 12:34 pm)

Hoa has valid WC cert from pool cleaner. Several months into contract, WC lapses due to non payment. Doesn't inform Hoa. If pool employee now gets hurt, hoa now becomes his 'employer' and is exposed to WC claim. Correct??

(I did suggest it is way cheaper for Hoa to carry it own WC compared to legal $ to fight claim)

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2breedbares (Apr 27, 2018 - 4:10 am)

Is this an pool cleaner employed by a separate pool cleaning business or just one guy acting as an alleged independent contractor?

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2ski (Apr 27, 2018 - 8:31 am)

This situation is the former: Contract holder has employees.

If sole prop, then he can opt out of WC. But, I would argue while the Sole Prop is exempt but then get hurt while on Hoa property doing his job, then he can be viewed as an hoa employee and Hoa is on the hook.

I'm thinking this same argument would hold for an individual homeowner who hires a self employed, exempted painter who gets hurt on owners property. Owner is screwed.

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2breedbares (Apr 27, 2018 - 4:38 pm)

I disagree unless you can show a degree of control the HOA had over the pool cleaner. Then again, the CDI has had stupider decisions.

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2ski (Apr 28, 2018 - 11:37 am)

I see where you are going with control. I'm thinking this applies:

Prior to 2015 Browning-Ferris Industries of California (# 32-RC-109684) Hoa would have to had exorcised actual control over vendor. Now, if entity just possesses that authority then it can become a joint employer.

And,

HEIMAN v. WORKERS' COMPENSATION APPEALS BOARD
(2007) 149 Cal.App.4th 724
https://caselaw.findlaw.com/ca-court-of-appeal/1115514.html
#5 paragraph 5

5. The Association Is Liable As Principal.

..Moreover, the Association had corporate powers to finance, contract and conduct business under Civil Code section 1363(c) 31 and Corp.Code section 7140.32  The Association performed these functions through its officers or directors and Pegasus as the paid “managing agent” under the Agreement and the Civil Code. Consequently, the duties performed by Hruby and Aguilera were not “personal” and were in the “trade, business” of the Association, and the Association was not an owner and exempt “employer” under sections 3351(d) and 3352(h).33  Therefore, the Association is liable for workers' compensation as the principal of Pegasus."

Pegasus - Hoa manager
Hruby - Vendor
Aguilera - Vendor employee who was injured on job

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2breedbares (Apr 30, 2018 - 2:43 am)

Were your guys unlicensed? That was a big factor in Heiman.

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2ski (Apr 30, 2018 - 7:32 am)

Pool Cleaners are not required to be licensed in Ca. So no license in place.

Hoa pools are commercial and operate under County Health permit. Not sure if that applies here but it may help determining if Hoa is viewed as employer.

Repairs go to a different co w/WC,contractor license, bond, etc.

2BB- I do appreciate your input

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jeffm (Apr 30, 2018 - 3:57 pm)

If this pool cleaner has other pools to clean (i.e., its own client base with its own schedule for other clients, too), I can't see how CA would view the HOA as an employer for purposes of subscribing to worker's comp. I'm just shooting from the hip and would be interested to know if this is not the rule.

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2ski (May 1, 2018 - 7:48 am)

What caught my eye is the idea of Hoa becoming a joint employer. In the past 1099 contract vendors were never employees if Hoa never dictated how to perform work, times, etc. ie. just accepted the contract and paid the bill. No employer/employee relationship.

Browning changed that, but interestingly, even before that Heinman recognised Hoa as the principal. 2BB makes a point Heinman used a licensed vendor, but I think the intent of the ruling doesn't pivot on if vendor is licensed or not.

Gets interesting, I think. Or not. Value everyone's 2 cents here.

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2breedbares (May 3, 2018 - 11:56 am)

Did you read the new Dynamex decision? Could be helpful to guide you.

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