The employment relationship
| Author | David L. Pollak/Roger A. Tolman, Jr./Monika R. Reyes |
| Pages | 133-200 |
THE EMPLOYMENT
RELATIONSHIP
3-1
CHAPTER 3
THE EMPLOYMENT RELATIONSHIP
I. GENERAL DEFINITIONS
§3:01 Threshold Issue
§3:02 “Employer”
§3:03 “Employee”
II. ELEMENTS OF THE RELATIONSHIP
§3:10 “Contract” of Hire
§3:11 Consideration
§3:12 Control
§3:13 Employment by Agent — Fennell
III. PREEMPLOYMENT OCCURRENCES
§3:20 “Tryouts” — Laeng
§3:21 Pre-Employment Physicals
§3:22 General Rights of Applicants for Employment
IV. DAYTODAY EMPLOYMENT
§3:30 Restrictive Approach — Bate
§3:31 Liberal Approach — Denney
V. IDENTITY OF EMPLOYER
§3:40 Source of Consideration — Claremont Golf Club
§3:41 Control — Actual or Implied
§3:42 Successor Entities
§3:43 Alter Egos
VI. MULTIPLE EMPLOYMENTS
A. General and Special Employment — Kowalski, Brassinga
§3:50 General Points
§3:51 Leased Equipment Operators
§3:52 Labor Brokers
§3:53 Subcontractors
§3:54 In-Home Supportive Services
B. Other Types of Multiple Employments
§3:60 Joint Employment
§3:61 Compare Concurrent Employment
§3:62 Compare Contribution — Hansen
§3:63 Uninsured Multiple Employer
THE EMPLOYMENT
RELATIONSHIP
California Workers’ Compensation 3-2
VII. INDEPENDENT CONTRACTOR RELATIONSHIP
§3:70 Introduction
§3:70.1 The Dynamex Case; Repeal of LC §2750.3 and Enactment of LC §2775
§3:70.2 Occupational Exceptions; LC §§2276-2784
§3:70.3 Rationale for the Independent Contractor Defense; The Borello Case
§3:71 Judicial Tests of Borello, et. al.
§3:72 Statutory Tests
§3:73 Express Contracts Not Controlling
§3:74 Where Work Performed Is an Integral Part of Alleged Employer’s Business
§3:75 Subcontracting Labor Force to Third Party
§3:76 Compare Residual Right of Control in Contractor
§3:77 No Control But Worker Not Independent Contractor Type
VIII. STATUTORILY EXCLUDED EMPLOYEES
§3:90 General
§3:91 Household Family Members
§3:92 Charity Cases
§3:93 Honorary Deputies and Out of State Deputized Peace Officers
§3:94 Volunteer Counselors; Ski Patrol Members; Ski Lift Operators
§3:95 Company Athletes
§3:96 Charity Volunteer
§3:97 Sports Officials
§3:98 Student Athletes
§3:99 Casual Workers; Newsboys; and Household Workers
§3:100 Partnerships/Limited Liability Companies
§3:101 Watchmen for Non-Industrial Establishments
§3:102 Sole Shareholder, Officers and Directors
§3:103 Domestic Worker Referral Agencies
§3:104 Specified Sponsors
IX. RIGHTS OF EXCLUDED WORKERS
§3:110 Exclusion; Affirmative Defense
§3:111 Civil Suits
X. HOUSEHOLD WORKERS
§3:120 General Coverage
§3:121 Household Employees Defined and LC §3352(h) Exclusion of Individuals Who
Worked for Less Than 52 Hours in Last 90 Days and Earned Less Than $100
§3:122 “Dwelling” Requirement
§3:123 Compare Business-Related Household Workers
§3:124 Compare Differing Insurance Policy Provisions
§3:125 Compare Independent Contractors
§3:126 Compare Practical Nurses and IHSS Choreworkers
§3:127 Exclusion of Close Relatives
XI. RIGHTS OF NONCOVERED HOUSEHOLD WORKERS
§3:140 Nonqualif ying Household Worker’s Right to Civil Suit — Furtado
§3:141 Ef fect of Homeowner’s Failure to Insure
§3:142 Remedies Against Employer of Pre-1977 Casual, Domestic and Gardener Exceptions
§3:143 Recovery Against Homeowner ’s Insurance Carrier
§3:144 Carrier Conflict With Homeowner — Cumis
XII. ELECTION TO COME WITHIN THE ACT
§3:150 General
§3:151 Rejection of Election
§3:152 Election Re Casual and Household Workers
§3:153 Public Employment
THE EMPLOYMENT
RELATIONSHIP
3-3 The Employment Relationship
XIII. STATUTORILYINCLUDED EMPLOYEES
§3:160 Aliens and Minors
§3:161 Elected and Appointed Paid Public Officers
§3:162 Corporate Officers and Directors
§3:163 State Prisoners
§3:164 Count y Prisoners — Arriaga
§3:165 Prisoner/Firefighters
§3:166 Juvenile Court Wards
§3:167 Working Partners
§3:168 Partnerships for a Specific Job
§3:169 Governmental Volunteers: Firefighters; Police Officers; Sheriffs; School Volunteers
§3:170 Public and Private Charity Volunteers
§3:171 Farm Workers — No Exclusion
§3:172 Government-Sponsored Trainees
§3:173 Disaster Ser vice Workers
§3:174 Posse Comitatus and Other Emergency Volunteers
§3:175 IHSS Choreworkers
§3:176 National Guard Members
§3:177 Occupational/Work Experience Trainees; Apprentices
XIV. JUDICIALLY INCLUDED EMPLOYEES
§3:190 Student Athletes; Not Cheerleaders
§3:191 “ Work-Fare” Recipients — Conroy
§3:192 Jurors
§3:193 Judges and Cour t Attaches
§3:194 Emancipated Children — Rieck
§3:195 Student Nurses
§3:196 Newsboys
§3:197 Real Estate Salespersons
§3:198 Entertainers
§3:199 Gardeners
§3:200 Communit y Service Workers; County Prisoners
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