employment - bradford & barthel, llp · employment contract needs: 3. consent/intention of the...
TRANSCRIPT
10/26/2017
1
EmploymentWho is (and who ain’t) an
employee?
By Donald Barthel
Bradford & Barthel, LLP
"Help Wanted"
Want w/c benefits?
FIRST prove employment
(case law includes scenarios where case was denied for failure to prove employment!)
War story!
County of Los Angeles v. WCAB (Conroy)
(1981) 46 CCC 1322, 1324
ww
w.b
rad
ford
ba
rth
el.
com
2
10/26/2017
2
W/C liability "exists against an employer for any injury sustained by his or her employees arising out of and in the course of the employment" (LC 3600(a)).
no employment = no benefits
Bryant v. Dees Liquor Store (1995) 60 CCC 601, 605 (appeals board en banc)
ww
w.b
rad
ford
ba
rth
el.
com
3
LC 3300
As used in this division, “employer” means:
a) The State and every State agency.
b) Each county, city, district, and all public and quasi public corporations and public agencies therein.
c) Every person including any public service corporation, which has any natural person in service.
d) The legal representative of any deceased employer.
Is anyone not covered?
You bet!
ww
w.b
rad
ford
ba
rth
el.
com
4
10/26/2017
3
3351“Employee” means every person in the service of an
employer under any appointment or contract of hire or
apprenticeship, express or implied, oral or written,
whether lawfully or unlawfully employed, and includes:
a) Aliens and minors.
b) All elected and appointed paid public officers.
c) All officers and members of boards of directors of
quasi-public or private corporations while rendering
actual service for the corporations for pay. An officer
or member of a board of directors may elect to be
excluded from coverage in accordance with
subdivision (p) of Section 3352.
ww
w.b
rad
ford
ba
rth
el.
com
5
3351“Employee” means every person in the service of an employer under any
appointment or contract of hire or apprenticeship, express or implied, oral
or written, whether lawfully or unlawfully employed, and includes:
e. All persons incarcerated in a state penal or correctional institution
while engaged in assigned work or employment as defined in
paragraph (1) of subdivision (a) of Section 10021 of Title 8 of the
California Code of Regulations, or engaged in work performed under
contract.
f. All working members of a partnership or limited liability company
receiving wages irrespective of profits from the partnership or limited
liability company. A general partner of a partnership or a managing
member of a limited liability company may elect to be excluded from
coverage in accordance with subdivision (q) of Section 3352.
Is anyone not covered?
You bet!
ww
w.b
rad
ford
ba
rth
el.
com
6
10/26/2017
4
Presumption applies!
LC 33573357. Any person rendering service for another, other
than as an independent contractor, or unless expressly
excluded herein, is presumed to be an employee.
Meaning?
Burden time!
ww
w.b
rad
ford
ba
rth
el.
com
7
State of California
=
Lots of departments
=
Single ER
Result...?
ww
w.b
rad
ford
ba
rth
el.
com
8
10/26/2017
5
State EE negligently injured
by state EE from any other dept
=
w/c exclusive remedy
City EE negligently injured by city EE from any other dept
=
w/c exclusive remedy
Colombo v. State of California (1992) 57 CCC 102
Walker v. City and County of San Francisco (1950) 97 Cal. App. 2d 901
ww
w.b
rad
ford
ba
rth
el.
com
9
Business ER
ER can be
1. human (duh)
2. "legally created person" (no breathing necessary!)
• partnerships
• corporations
• associations
• Lots of partners? Officers? Managers? Etc.?
• No matter! No need (or opportunity) to file against everyone
• W/C claim is filed against the "ER" only (aka "legally created person")
Joe Kerley Lincoln Mercury, Inc. v. WCAB (Fieldhouse) (2003) 68 CCC 1217 (writ denied)
ww
w.b
rad
ford
ba
rth
el.
com
10
10/26/2017
6
Got a legally created ER...?
...got no w/c (and not PSI?)
=
trouble for parent corporation,
or a "substantial shareholder”
JOINTLY & SEVERALLY LIABLE to UEBTF
ww
w.b
rad
ford
ba
rth
el.
com
11
"substantial shareholder"?=
"a shareholder who owns at least 15 percent of the total
value of all classes of stock, or, if no stock has been
issued, who owns at least 15 percent of the beneficial
interests in the corporation" LC 3717(b)
ww
w.b
rad
ford
ba
rth
el.
com
12
10/26/2017
7
"This activity is brought to you by..."
a SPONSOR (ER?)!
LC 3301(a), the term "employer" excludes "[a]ny
person while acting solely as the sponsor of a bowling
team."
I kid you not!!!!!
ww
w.b
rad
ford
ba
rth
el.
com
13
"This activity is brought to you by..."
a wonderful nonprofit!
LC 3301(b) excludes "Any private, nonprofit
organization while acting solely as the sponsor of a
person who, as a condition of sentencing by a superior
or municipal court, is performing services for the
organization."
Think Salvation Army ww
w.b
rad
ford
ba
rth
el.
com
14
10/26/2017
8
Salvation Army exclusion includes
only organizations that are:a. private
b. nonprofit
NOT public ERs
ww
w.b
rad
ford
ba
rth
el.
com
15
What about the orange jumpsuits
on the side of the road?Performing "community service" instead of a fine for
crime?
State/County = ER
(exclusive remedy applies)
Arriaga v. County of Alameda (1995) 60 CCC 316
ww
w.b
rad
ford
ba
rth
el.
com
16
10/26/2017
9
Performing "community service"
instead of a fine for crimeAND
assigned to private, nonprofit (PN)?
PN not liable (don't forget [LC 3301(b)]
ww
w.b
rad
ford
ba
rth
el.
com
17
Speaking of TSA?Dominguez v. County of Orange, 2016 Cal. Wrk. Comp. P.D.
LEXIS 180
Facts:
• live-in drug rehab program
• injured while working at TSA (used for rehab)
Holding:
• not an EE of TSA
• not an EE of Orange County
Reason:
• TSA was "sponsor", not ER
• County neither assigned nor controlled work or workplace
ww
w.b
rad
ford
ba
rth
el.
com
18
10/26/2017
10
Knowing the exception is
VERY IMPORTANT
('cause definition of EE is VERY BROAD)
ww
w.b
rad
ford
ba
rth
el.
com
19
This is interesting...
Are you...
• on a jury?
• private person deputized by sheriff to assist
apprehending a suspected criminal?
=
County EE
Compensation calculation = deputy sheriff's average annual earnings
County of Monterey v. IAC (Rader) (1926) 199 Cal. 221
ww
w.b
rad
ford
ba
rth
el.
com
20
10/26/2017
11
Apprentice...
"The basic idea of an apprenticeship program is to allow on-the-job training for apprentices who work under the supervision of journeymen and thus to encourage and assist persons to enter into the skilled work force."
Electrical Joint Apprenticeship Committee v. MacDonald (1991) 949 F. 2d 270, 274
ww
w.b
rad
ford
ba
rth
el.
com
21
training/experience = wages
Covered per LC 3351
What if learning away from job site?
LC 3368: "An apprentice, while attending related an
supplemental instruction classes, shall be considered to
be in the employ of the apprentice's employer"...
READY FOR THIS?
..."unless the apprentice is unemployed"
ww
w.b
rad
ford
ba
rth
el.
com
22
10/26/2017
12
Be careful on your way to class
Unless on a "special mission", travel to/from class
= NOT
compensable
ww
w.b
rad
ford
ba
rth
el.
com
23
Not on payroll?
Not determinative!
Strom Drywall v. WCAB (Dosher) (1971)
36 CCC 17 (writ denied)
Facts:
• apprentice under brother's supervision
• not on ER's payroll
Holding: apprentice ee
Reasoning:
• foreman, who could hire/fire, knew about apprentice
• apprentice was paid by brother
ww
w.b
rad
ford
ba
rth
el.
com
24
10/26/2017
13
CONTRACT of HIRELC 3351: K of hire may be "express or implied, oral or
written."
LC 2750 employment contract = contract "by which one,
who is called the employer, engages another, who is
called the employee, to do something for the benefit of
the employer or a third person."
ww
w.b
rad
ford
ba
rth
el.
com
25
CONTRACT of HIRE
It's like any ole contract (oral or written)(express or
implied)
Employment contract needs:
1. offer (coming from agent of ER with authority) (or
apparent authority)
2. acceptance (no need to sign anything; can be
demonstrated by actions)
ww
w.b
rad
ford
ba
rth
el.
com
26
10/26/2017
14
Employment contract needs:
3. consent/intention of the parties ("a party's
unexpressed intention is usually immaterial because
whether an employment relationship is created is
determined by external, rather than internal
standards and objective, rather than subjective,
tests")
ww
w.b
rad
ford
ba
rth
el.
com
27
Employment contract needs:
4. consideration (typically money...but anything of
value, including services in return)
ww
w.b
rad
ford
ba
rth
el.
com
28
10/26/2017
15
Employment contract needs:
5. ER control over EE (actual control exercised not determinative; consider right to/potential for control)
"The primary test of a disputed employer-employee relationship is whether the employer has '[t]he right to control and direct the activities of the alleged employee or the manner and method in which the work is performed ..'"
Edwards v. City of Chico (1972) 37 CCC 792, 794 citing Industrial Indemnity Exchange v. IAC
(Campellone) (1945) 10 CCC 59
ww
w.b
rad
ford
ba
rth
el.
com
29
Posadas v. WCAB (2001) 66
CCC 651 (writ denied)
Facts:
• "EE" voluntarily participated in rehab
• "ER" = private, nonprofit charity
• "EE" signed agreement: "no employment relationship”
received stipend as part of work rehab
Holding: no employment relationship
ww
w.b
rad
ford
ba
rth
el.
com
30
10/26/2017
16
How tiny can the consideration
be?
Facts:
• hospital paid student 45 cents/hr
Holding: = consideration
Barragan v. WCAB (1987) 52 CCC 467, 478
ww
w.b
rad
ford
ba
rth
el.
com
31
How tiny can the consideration be?
Ex training/instruction in hospital externship program
=
consideration
Ex. working at son's school to receive decreased tuition
=
consideration
Remillard v. WCAB (1991) 56 CCC 342
ww
w.b
rad
ford
ba
rth
el.
com
32
10/26/2017
17
No contract?
Trying out for a job?
=
EE
R:
• "service"/"benefit" to ER
• under control of "ER”
• risks same as EE
SCIF v. WCAB (Bate) (1976) 41 CCC 325
ww
w.b
rad
ford
ba
rth
el.
com
33
Traditional Contract NOT
needed:
welfare recipient?
injured while working as condition of getting benefits?
=
EE
ww
w.b
rad
ford
ba
rth
el.
com
34
10/26/2017
18
FACTS:
• football coach with 10 month K
• K didn't include summer
• used summer to prepare for season (had access to
school facilities)
• school implicitly permitted
HOLDING: EE
Pomona College v. WCAB (Robusto) (2009)
74 CCC 1284 (writ denied)
ww
w.b
rad
ford
ba
rth
el.
com
35
REASONING:
• lack of written contract
• performing services
• services accepted
=
presumed EE
Pomona College v. WCAB (Robusto) (2009) 74 CCC 1284 (writ denied)
ww
w.b
rad
ford
ba
rth
el.
com
36
10/26/2017
19
Contra...
FACTS:
• injury at "ER's" gas station service bay
• EE worked on his own
• handed out personal business cards
• no permission (express or implied)
• no uniform
ww
w.b
rad
ford
ba
rth
el.
com
37
FACTS (con't)
• no paycheck
• never worked on cars
• injury happened after normal hours
• tools not on premises
HOLDING: not EE
(see how tough this test is?)
Malazani v. WCAB (2001) 66 CCC 1112 (writ denied)
ww
w.b
rad
ford
ba
rth
el.
com
38
10/26/2017
20
Overcoming the presumption...
ASSUME you're dealing with an EE
LC 3357: "Any person rendering service for another, other
than as an independent contractor, or unless expressly
excluded herein, is presumed to be an employee."
All ties go to the runner!
ww
w.b
rad
ford
ba
rth
el.
com
39
Who has the burden?YOU!
Lucky you...you get to prove a negative!
Needed: preponderance of the evidence
• Fun Fact: you can (might...probably won't) win using only "EE's" testimony
Lara v. WCAB (2010) 75 CCC 91, 97
ww
w.b
rad
ford
ba
rth
el.
com
40
10/26/2017
21
Not always a presumption...not "rendering service" when injured?
no presumption applies!!!
FACTS:
• terminated
• received severance package
• received voluntary career counseling
HOLDING: not EE
REASON: not rendering service to "ER"
No good deed goes unpunished?!?!
NOT in this case!
Winston v. WCAB (1998) 63 CCC 795 (writ denied)
ww
w.b
rad
ford
ba
rth
el.
com
41
Contractor's License
worker's services require contractor's license
(and doesn’t have)
or
worker is performing services for someone who is req'd to
have a license
(and doesn’t)
=
EE
Be careful with folks you hire at home!
ww
w.b
rad
ford
ba
rth
el.
com
42
10/26/2017
22
Breaking the law
aka “lawfully employed”
vs
“unlawfully employed”
LC 3351: EE can "lawfully or unlawfully employed."
What does that mean?
ww
w.b
rad
ford
ba
rth
el.
com
43
LC 3351
"is intended to cover those cases in which the contract of
employment is lawful merely because of some provision
of law dealing with such contracts of employment and is
not intended to cover cases where the contract of
employment is unlawful for the reason that it requires
the employee to perform acts constituting violations on
his part of the express provisions of our penal statutes."
Massachusetts Bonding and Insurance Co. v. IAC
(Cook) (1937) 2 CCC 105, 107
ww
w.b
rad
ford
ba
rth
el.
com
44
10/26/2017
23
The upshot?
Difference between
"unlawfully employed"
vs
"unlawful employment"
• "unlawfully employed" does not mean duties are illegal!
• Commonly involves hiring illegal immigrants
STILL covered by W/C
ww
w.b
rad
ford
ba
rth
el.
com
45
Theory: ER committed illegal action(don't punish "innocent" immigrant)
But isn't the immigrant breaking the law, too!?!
Example:
• "EE" illegally uses fraudulent papers to be hired
• this is a crime!
Result?
still an "EE"
Farmer Brothers Coffee v. WCAB (Ruiz) (2005)
70 CCC 1399
ww
w.b
rad
ford
ba
rth
el.
com
46
10/26/2017
24
Contrast...
Hired to commit a crime
That is, not "unlawfully employed”
(see above)
rather, "unlawful employment”
=
criminal
ww
w.b
rad
ford
ba
rth
el.
com
47
"unlawfully employed" to burn
downcompetitors business?
not EE
ww
w.b
rad
ford
ba
rth
el.
com
48
10/26/2017
25
SUMMARY
benefits
• "unlawfully employed”: yes
• "unlawful employment”: no
Drakos v. Makiwett (1940) 6 CCC 228
ww
w.b
rad
ford
ba
rth
el.
com
49
What about wobblers?
some illegal activity
AND
some legal activity?
ww
w.b
rad
ford
ba
rth
el.
com
50
10/26/2017
26
Baker v. WCAB (Arnold) 80 CCC
1477 (writ denied)FACTS:
• uninsured ER
• learning to grow pot (criminal activity)
• gunshot injury (wheelchair)
HOLDING: EE
REASON:
"During applicant’s brief residence on Mr. Pingrey’s
property, in exchange for $500 per week and room and
board, he performed hours of labor daily on demanding
tasks solely intended for the upkeep of the premises and
unrelated to Mr. Pingrey’s marijuana business.
ww
w.b
rad
ford
ba
rth
el.
com
51
Baker v. WCAB (Arnold) 80 CCC
1477 (writ denied)
“…Applicant…performed household duties, cooking and
cleaning for Mr. Pingrey and his son, who also lived on
the premises. Thus, there is substantial evidence that
applicant’s primary job duties were incidental to the
ownership and maintenance of the premises,
notwithstanding applicant’s intent to learn marijuana
cultivation."
ww
w.b
rad
ford
ba
rth
el.
com
52
10/26/2017
27
How decided?
No special test
No special facts
No special circumstances
Determined on case-by-case basis
Anaheim General Hospital v. WCAB (Craig) (1970) 35 CCC 2, 4
ww
w.b
rad
ford
ba
rth
el.
com
53
How decided?
Can be a question of fact
or
Can be a question of law
Factual decision:
WCAB's decision upheld if supported by "substantial evidence"
S.G. Borello & Sons, Inc. v. DIR (1989) 54 CCC 80, 84
Only inference can be drawn from the facts?
=
question of law
WCAB's decision is subject to DCA's independent review
ww
w.b
rad
ford
ba
rth
el.
com
54
10/26/2017
28
What if has already been
decided?If employment status has been decided by
court oe commission...
collaterally estopped
from arguing again
before WCAB
ww
w.b
rad
ford
ba
rth
el.
com
55
HURRY UP!Employment = "threshold issue"
Meaning...?
employment (and aoe/coe)
can go to expedited
ww
w.b
rad
ford
ba
rth
el.
com
56
10/26/2017
29
JUDICIALLY DEFINED
EMPLOYEES(aka trouble the courts have created!)
• Students
• Jurors
• Judicial Branch EEs
• Union Members
• Welfare Recipients
• Individuals Who Perform Community Service for
Criminal Convictions
• Home Owners Association Employees
• Referral Agencies
ww
w.b
rad
ford
ba
rth
el.
com
57
"union members"?
• injured picketing = union ee
• injured on ER's premises for union activities
(not as an incident of employment)
• NOT ER's employee
SCIF v. WCAB (Bate) (1976) 41 CCC 325, 328
ww
w.b
rad
ford
ba
rth
el.
com
58
10/26/2017
30
Statutorily Created "EEs"
aka Trouble Sacramento Created
• LC 3351 lists certain categories of "employees"
• LC 3351.5 lists certain individuals that are included
• Exhausting (but not exhaustive) list of all
• Courts can (and do) search various codes to find
employment
ww
w.b
rad
ford
ba
rth
el.
com
59
Minors
• under 18 y/o?
• usually need work permit
• unlawful to hire w/out permit
So what?
• minors = EEs whether:
• legal employed, or
• illegally employed
ww
w.b
rad
ford
ba
rth
el.
com
60
10/26/2017
31
The BIG one: Independent
ContractorsEmployee or not?
Status important to
• WCAB
• EDD (employment related taxes)
• Div of Labor Standards Enforcement (are wage, hour, w/c
ins. laws being followed?)
• Franchise Tax Board
• Contractors State Licensing Board ww
w.b
rad
ford
ba
rth
el.
com
61
Multi factorial test
No fact controls
MUST determine case-by-case
ww
w.b
rad
ford
ba
rth
el.
com
62
10/26/2017
32
Fun Factoid
When distinguishing an EE from an IC in California:
• written agreement purporting to establish I.C.
relationship not determinative
• fact that worker is issued a 1099-MISC form rather
than a W-2 form not determinative
Toyota Motor Sales v. Superior Court (1990) 220
Cal.App.3d 864, 877)
ww
w.b
rad
ford
ba
rth
el.
com
63
Example
Time to build a pool!
(and I ain't qualified!)
ww
w.b
rad
ford
ba
rth
el.
com
64
10/26/2017
33
"Where do they [the alleged
ER] send you [the alleged EE]
for information?"
If you are sent to Personnel/HR…
it's a safe set = EE
(no matter what documents are given)
If you are sent to accounts receivable…
you're more likely an independent contractor
ww
w.b
rad
ford
ba
rth
el.
com
65
H/R supervises or management
employees (not contractors)
Accounts Receivable deals with contracts and paying bills
Thanks to Dennis Knotts for this excellent insight!
ww
w.b
rad
ford
ba
rth
el.
com
66
10/26/2017
34
Let's play a game!
Questions 1 through 3
If yes to any, bet "EE"
1. Does "ER" instruct/supervise "EE" while he or she is working?
Yes _____ No _____
• ICs do it their own way, (they choose methods)
• IC is engaged only for end result.
• Must follow company procedure re instructions on "how to" perform?
we got trouble
• Req’d to comport with company handbooks? We got more trouble!
ww
w.b
rad
ford
ba
rth
el.
com
67
Let's play a game!
2. Can worker quit or be discharged any time?
Yes _____ No _____
• If "ER" can fire without notice = right to control "EE"
• ICs are retained for specific jobs
• Can’t be “fired”
• If agreement falls apart, it's contractual
• Not free to quit (employment at will) until the job is
complete.
ww
w.b
rad
ford
ba
rth
el.
com
68
10/26/2017
35
Example
• Business person hires attorney to review lease
• Atty is only paid after completing job.
ww
w.b
rad
ford
ba
rth
el.
com
69
Let's play a game!3. Is work part of "ER's" regular business?
Yes _____ No _____
• Work that is a necessary part of regular business is done by EEs.
• Ex sales clerk is selling shoes in a shoe store
CONTRAST
plumber fixing pipes in store bathroom
=
one-time service not an essential part of the purpose of the business
ww
w.b
rad
ford
ba
rth
el.
com
70
10/26/2017
36
Let's play a game!
• A "No" answer to questions 4 through 6 indicate not
in a business for self; likely an EE
4. Does worker have a separately established
business?
Yes _____ No _____
When hold selves out to general public as available to perform
similar services the individual is operating separately established
business; normally an IC.
ww
w.b
rad
ford
ba
rth
el.
com
71
Let's play a game!
ICs
1. can hire EEs and
2. assign work to others
3. can fire their EEs without your knowledge or
consent
4. can (normally) advertise their services
ww
w.b
rad
ford
ba
rth
el.
com
72
10/26/2017
37
Let's play a game!
5. Is worker free to make business decisions that affect
his ability to profit?
Yes _____ No _____
ICs are free to make business decisions that affect ability to
profit. They involve real economic risk (not just the risk of not
getting paid).
ww
w.b
rad
ford
ba
rth
el.
com
73
Let's play a game!
Decisions include
1. acquisition, use and disposition of equipment,
facilities and stock in trade
2. amount and type of advertising for the
business
3. priority in which assignments are worked
4. selection of types and amts of ins ww
w.b
rad
ford
ba
rth
el.
com
74
10/26/2017
38
Let's play a game!
6. Does individual have substantial investment that
would subject him to a financial risk of loss?
Yes _____ No _____
I.C.s furnish tools, equipment and supplies needed. ICs have
an investment in items needed. To the extent necessary, ICs
provide their own business facility.
ww
w.b
rad
ford
ba
rth
el.
com
75
Let's play a game!
Questions 7 through 13 "Yes" answer to any suggests
worker may be an employee: no one factor is deciding.
All factors must be considered and weighed together.
ww
w.b
rad
ford
ba
rth
el.
com
76
10/26/2017
39
Let's play a game!
7. Do you have EEs who do the same type of work?
Yes _____ No _____
This standard applies even if the work is being done on a
one-time basis. Ex. to handle an extra workload or
replace an EE who is on vacation (temporary). Worker is
a temporary “employee”, not an IC.
ww
w.b
rad
ford
ba
rth
el.
com
77
Let's play a game!
8. Do you furnish the tools, equipment or supplies used
to perform the work?
Yes _____ No _____
ICs furnish the tools, equipment and supplies. ICs have an
investment in the items needed.
ww
w.b
rad
ford
ba
rth
el.
com
78
10/26/2017
40
Let's play a game!
9. Is the work considered unskilled or semi-skilled
labor?
Yes _____ No _____
Courts and the California Unemployment Insurance Appeals
Board have held unskilled or semi-skilled are the workers the law
is meant to protect (employees).
10. Do you provide training for the worker?
Yes _____ No _____
ww
w.b
rad
ford
ba
rth
el.
com
79
Let's play a game!
11. Is the worker paid a fixed salary, an hourly wage or
based on a piece rate basis?
Yes _____ No _____
ICs agree to do a job and bill for the service performed.
Payments to ICs are made upon the completion of the
project or of specific portions.
ww
w.b
rad
ford
ba
rth
el.
com
80
10/26/2017
41
Let's play a game!
12. Did worker previously perform the same or similar
services for you as an EE?
Yes _____ No _____
• If yes, it indicates still an EE
• “IC status” may be subterfuge
ww
w.b
rad
ford
ba
rth
el.
com
81
Let's play a game!
13. Does worker believe he is an EE?
Yes _____ No _____
Although belief not controlling, intent of the parties is a
factor.
(umm…how often is that going to happen?!) ww
w.b
rad
ford
ba
rth
el.
com
82
10/26/2017
42
Interpretations of Answers
Depending on the services being performed and type of
job, questionnaire may produce a variety of results
some factors lean one way, others in the other
1 - 6 indicate presence or absence of direction and
control
7 - 13 indicate the presence or absence of direction and
control.
ww
w.b
rad
ford
ba
rth
el.
com
83
Interpretations of Answers
1. If all of the answers to 1-3 are "No" and all of the
answers to questions 4-6 are "Yes," there is
independence. When this is the case, there are likely
to be a number of "No" answers to questions 7-13,
thereby adding to the support of the determination.
ww
w.b
rad
ford
ba
rth
el.
com
84
10/26/2017
43
Interpretations of Answers
2. If all of the answers to questions 1-3 are "Yes" and all
of the answers to questions 4-6 are "No," likely an
employee. When this is the case, there are likely to be
a number of "Yes" answers to questions 7-13, adding
support ee qualification.
ww
w.b
rad
ford
ba
rth
el.
com
85
Interpretations of Answers
3. If the answer to question 1 or 2 is "Yes" or the answer
to any one of questions 4-6 is "No,”…suggest
employment. Determination more difficult because
responses to 7-13 will probably be mixed.
ww
w.b
rad
ford
ba
rth
el.
com
86
10/26/2017
44
Interpretations of Answers
4. If the answer to question 3 is "Yes" and the answer to
question 4 is "No," = likely EE. Probable answers to 5
and 6 will also be "No." In this situation, you may also
see more "Yes" answers to the last group of questions
(7-13). This would support employment.
ww
w.b
rad
ford
ba
rth
el.
com
87
Do you see a pattern?w
ww
.bra
dfo
rdb
art
he
l.co
m
88
10/26/2017
45
Donald Barthel, Esq.
Bradford & Barthel, LLP
2518 River Plaza Drive
Sacramento, CA 95833
(916) 569-0790
ww
w.b
rad
ford
ba
rth
el.
com
89