by Jake Jacobsmeyer.

The Court of Appeals has reversed a WCAB decision finding a household employee to be eligible for WC benefits. In a significant panel decision issued in September, 2005, the WCAB had determined that the Legislature had intended that household employees who could not meet the test for employment under Labor Code Section 3352(h) could still qualify as a residential employee entitled to workers compensation coverage under Labor Code Section 3351(d) if they met the criterion under Labor Code Section 3715(b). That section created a much lower threshold of employment (10 hours instead of 100 and earnings projected at $100 rather than actual earnings of that amount).

The Appellate Court however concluded that Labor Code Section 3715 was specifically intended to serve as a deterrent to employers failing to provide insurance and not an alternate basis for establishing employment as a residential employee:

"The language of section 3715 and its placement in the part of the workers' compensation law dealing with uninsured employers leave little doubt that its application is limited to uninsured employers. Our conclusion is reinforced by the fact the Legislature requires homeowners' insurance policies to contain workers' compensation coverage (Ins. Code, Section 11590), but only for residential employees as defined in subdivision (d) of section 3351. (See State Farm, supra, 16 Cal.4th at p. 1197 [Section 3351, subd. (d) incorporates Section 3352, subd. (h)].) It would hardly make sense to require insurers to provide coverage for residential employees, but then to leave a large number of residential employees outside the scope of that required coverage.

The court further expressed puzzlement over the WCAB's rational in applying this section in addition to Labor Code Section 3352(h) as one would not even need the later section if Labor Code Section 3715 was applicable.

As a practical matter this case will have few applications as it applies exclusively to residential employees and would provide coverage only where there is no WC insurance thereby extending workers' comp benefits to some additional employees of uninsured employers only.

However the downside to this decision is that if the workers are not covered by WC insurance, civil remedies may very well be available.

By attorney Richard "Jake" Jacobsmeyer, managing partner of the Concorde office of Adelson, Testan, Brundo & Popolardo. Jake can be reached at richardjacobsmeyer@atblaw.net.

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