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“EMPLOYEE” PRESUMPTION AND BURDEN OF PROOFIn order to be entitled to workers’ compensation benefits there must exist an employment

relationship at the time of the injury.  Labor Code 3600 (a) provides that an employer is liable for workers’ compensation benefits “for any injury sustained by his or her employees arising out of and in the course of employment.

Labor Code 3351 defines an employee as follows: “every person in the service of an employer under any appointment or contract of hire of apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed”.

As a result, an individual can be an “employee” entitled to the protection and benefits of the Workers’ Compensation Act:

  • Without an express (discussed and agreed upon) contractual relationship
  • Working under an apprenticeship – which would include a program for training a person (apprentice) to learn a specific trade (e.g. on-the-job training)
  • If appointed to a position – including an individual appointed to act as a juror
  • Even if working unlawfully – including, for example, an illegal immigrant or certain minors

There even exists a presumption of employee status under the Labor Code Section 3357 which states, “Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee”.  This is a very expansive definition of the  term “employee” allowing many workers to be determined to be an employee, entitled to workers compensation benefits and medical care, even under circumstances which would otherwise be questionable.

Due to this presumption, when an individual is injured while performing services for an employer the burden of proof shifts to the employer to prove that the individual was an independent contractor or is otherwise not entitled to be covered under the Workers’ Compensation Act.  If an employer is not able to overcome the presumption by meeting this burden the individual will be deemed an “employee” – but remember, it does require that the individual was rendering service for the employer at the time of the injury.

Typically, if the courts can, they will try to use this presumption to find an employment relationship such that the individual who sustained injuries while rendering services for another, is able to obtain medical treatment and benefits under the Workers’ Compensation System – rather than put this person is a position where they have, at least potentially, no other recourse.

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