Second Appellate District Determines Gardener Not Employee For Workers’ Compensation Coverage Purposes
In Lara v. WCAB and Bratiff Home Corp., No. B214234 (February 25), Division Three of the Second Appellate District considered whether a gardener hired twice in the space of twelve months to prune bushes for a diner was an employee at the time he sustained injury.В The WCAB had held that he was an independent contractor.В The Court of Appeal, relying on S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3rd 341, agreed.В The primary Borello factor is whether the alleged employer controls the manner and means of accomplishing the result desired.В Secondary factors include whether the worker has a distinct occupation, whether he or she supplies his or her own materials, the method of payment, whether the work is a component part of the alleged employer’s business, whether the worker makes his or her own investment in the worker’s business, and whether the worker has his or her own employees.В The worker here was hired for purposes of achieving a result, the pruning of the trees; there was no evidence the means by which he did so was directed.В The Court decided that its review of the secondary Borello factors also supported its holding.
February 25, 2010
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