Seasonal Work and Earnings: Getting it Right

• Publication year: 2018
• Author: STEVEN ROSENFELD, ESQ.

Seasonal Work and Earnings: Getting It Right

STEVEN ROSENFELD, ESQ.

HEATHER GARCIA, ESQ.

Sherman Oaks, California

Introduction

Temporary disability (TD) rates in California are based on an injured worker's average weekly earnings (AWE), and the legislature provided a statutory scheme in Labor Code section 4453 to assist in the calculation of the AWE. The legislature did not, however, provide a specific method for determining the AWE of a seasonal employee. That is important because a conclusion that someone is a seasonal employee may have a significant impact on the employee by allowing the employer to pay TD at a different rate, or even no TD at all, during the off-season. This article seeks to provide some clarification on how to calculate a truly seasonal AWE.

First we need to agree on what it means to be a seasonal employee. In the simplest terms, we understand a seasonal employee to be engaged in work that is not year-round and is often based on agricultural harvests that might last, within a year, from as little as a few weeks to more than six months. Implicit in describing work as "seasonal" is the understanding that there will be a start date and a stop date each year, although there will be some variance depending on weather, crops, or other factors. We can also consider seasonal work in the nature of limited-duration employment around certain holidays, such as working returns in a department store for the post-holiday rush.

Within the grouping of seasonal employees are subsets, predominantly the category of those who work a single season and take the rest of the year off, but also including seasonal employees who work year-round, or nearly year-round, on various seasonal jobs. For example, it would not be unusual for an injured worker to spend six months on the strawberry season, a month on raspberries, a month on flowers, and a couple of months on vegetables. To determine the appropriate AWE we will need to figure out the dates and dollar amounts of each of these possible employments.

We must also keep in mind that in determining the AWE for the correct TD rate, the objective is to "predict what the employee's earnings would have been during his or her period(s) of TD but for the industrial injury." Jimenez v. San Joaquin Valley Labor (2002) 67 Cal.Comp.Cases 74, 77 (WCAB en banc). In making that determination it is important to consider relevant and helpful facts, including ability to work, age, health, willingness and opportunities to work, skills, education, and the general condition of the labor market. Argonaut Ins. Co. v. Industrial Acc. Com. (1962) 57 Cal.2d 598, 595.

The Statutory Scheme

Labor Code section 4453(c) provides the statutory framework to determine an applicant's AWE:

1. Where the employment is for 30 or more hours a week and for five or more working days a week, the average weekly earnings shall be the number of...