In the case of Brown v. County of Los Angeles/Sheriff’s Department, applicant sought workers’ compensation benefits, alleging employment as an inmate of the county jail.  Although the county enjoyed initial success on the trial level, its victory was lost before the Workers' Compensation Appeals Board commissioners.

Gregory Grinberg

What happened? Applicant was sentenced to 364 days in jail, where he signed up for a conservation work program to receive credits and expedite his release. Not two weeks after starting the program, he slipped and fell while walking to the print shop in which he worked. He visited urgent care and was released a few hours later to the work program.

Applicant sought workers’ compensation benefits, claiming he was an employee of the county, which the county denied. At trial, the judge found applicant was not an employee and was not entitled to benefits.

At trial, the judge relied on an ordinance from the 1970s issued by the County Board of Supervisors that inmates can be forced to work and that this would not constitute an employment relationship. The WCAB posed the test for employment of inmates as follows: Was the work compulsory or voluntary? If the work was compulsory, there is no employment relationship formed. If, however, it was voluntary then there is.

After weighing the evidence, including the fact that applicant had to apply for the job in the print shop and could be fired or withdrawn from that position at any time, the WCAB ruled that the job was voluntary and thus formed an employer-employee relationship between the county and applicant. 

So, what are county jails to do? Well, it appears that to avoid workers’ compensation benefits, counties can compel labor from inmates rather than making it voluntary. Of course, counties will then face the same problem that every would-be compeller has faced throughout history: sabotage, poor work product, damages to machines and equipment.

Sounds like a decision above my pay grade, but it's something to consider — ideally before an injury is sustained by an inmate.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.