FEHA Ain't Work Comp

Whether one is an employee is always an interesting question in workers' compensation.

Many employers, and workers for that matter, erroneously believe that if they are designated as an independent contractor for tax purposes, receiving a 1099 report on their wages, that they are not employees for workers' compensation matters. This is a relatively common occurrence.

But the issue can arise in other contexts, and a recent California case highlights this paradox.

Sierra Madre is a small city in the north-east sector of Los Angeles County.

Kailyn Enriquez applied for a position as a firefighter for the Sierra Madre Fire Department in October 2007. The city selected her to work as a probationary volunteer firefighter the following January.

The city hires and fires volunteer firefighters, sets the rules and regulations for their work, requires them to work specific shifts and to arrive on time and requires them to report to supervisors and to work within the framework of the SMFD. Volunteer firefighters also receive training and workers' compensation coverage.

The city pays volunteer firefighters a stipend of $1 per day, every 90 days, and also pays the volunteers $33 per day if they are "hired out" to other agencies.

On April 10, 2008, Enriquez began the background check procedure required for employment by the Sierra Madre Police Department.

Four months later, the SMFD issued her a disciplinary notice stating that she was "[d]ishonest," "[d]isobedient" and had taken actions that "adversely affect the safety of employees or others" and harassed her SMFD colleagues (she allegedly discussed private personnel matters with others not approved to receive such information).

The SMPD then withdrew its offer of employment to Enriquez, citing this disciplinary notice as the reason.

At the end of 2009, the SMFD informed Enriquez that she was being placed on leave from her position as a volunteer firefighter because she had not yet obtained her Emergency Medical Technician certification. The city sent her a letter in March warning her that if she did not get certified, she would be fired effective June 1.

Meanwhile, Enriquez learned she was pregnant. Her doctor imposed severe movement restrictions on her because she had placenta previa.

Enriquez contacted the SMFD on June 6, 2010, to request a leave until the spring of 2011 due to her pregnancy.

The SMFD responded that she had been terminated as of June 1, because she had not obtained her EMT certification.

The actual factual contentions in the appellate opinion are a bit more complex, and give the case a flavor of long-standing malcontent between Enriquez and the city's departments. There obviously is more to this story than the recited facts.

Regardless, Enriquez then filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission asserting that the SMFD had wrongfully terminated her because of her gender, her pregnancy and her temporary disability.

She asserted similar allegations in a complaint to the California Department of Fair Employment and Housing.

The EEOC dismissed Enriquez's charge on the ground that there was no employer-employee relationship between Enriquez and the city, but the DFEH issued her a right to sue letter.

Enriquez lost at the law and motion level in superior court on the City's demurrer.

The Second District Court of Appeal affirmed.

The facts stated in the court's opinion don't go into the when, why or how regarding workers' compensation benefits, but the court acknowledge's Enriquez' statement that she received workers' compensation benefits. Enriquez thus argued that her receipt of work comp made her an employee under the law.

The court rejected this analysis noting that different laws have different impacts on employment status under different factual settings and in this case the fact of receipt of work comp benefits did not convey on Enriquez employee status for purposes of the Fair Employment and Housing Act.

The Second District quoted the recent case of Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143:

"The fact the City provides volunteer reserve officers with workers’ compensation benefits if they sustain industrial injuries does not change the fact they serve without remuneration. The City’s workers’ compensation benefits, similar to the recurring $50 reimbursement for a volunteer’s out-of-pocket expenses, simply serve to make a volunteer whole in the event the volunteer were to sustain injury while performing his or her duties. Irrespective of the significant value of workers’ compensation benefits, the purpose of workers’ compensation is ‘to compensate for losses resulting from the risks to which the fact of employment in the industry exposes the employee.’ [Citation.] The fact the City ensures that unpaid volunteers such as [the plaintiff] are compensated for industrial injuries does not mean that such persons are deemed employees for purposes of the FEHA.”

The case is Enriquez v. City of Sierra Madre, No. B240916, 10/16/2013, unpublished.