Grinberg: AB206 to Increase Scope of Employees Covered by WC to Day Laborers

Friday, February 3, 2017 | 0

Just imagine this, dear readers: You get home from a hard day of work and you find your home has been infested with tribbles.

As every "Start Trek" fan knows, tribbles are wonderful, adorable, cute little creatures. But boy, do they multiply.

Well, this being more than enough work for one pair of hands, let’s say you hired help.  Because of the ability of tribbles to reproduce very quickly, it takes you and your hired set of hands 49 hours over several days to finally clear out every last one.

Just when you think your troubles are over, though, your very temporary worker hands you a claim form, explaining that all the bending over in picking up the tribbles, and the repetitive wrist movements of stroking them to keep them calm, has caused near permanent total disability.

Isn’t it nice to be able to rely on Labor Code section 3352(h), which specifically excludes from workers’ comp coverage temporary employees who work a total of less than 52 hours in the 90 days before the injury?

Well, the next victim of a tribble infestation, or really any short-term project, might not be so lucky.

Assemblyman Lorena Gonzalez Fletcher, D-San Diego, has recently introduced AB 206, which would eliminate the exemption described above.

As always, we must ask ourselves, cui bono? Who would benefit from day laborers and short-term workers being able to file workers’ compensation suits?

Well, applicant attorneys, of course, as well as their horde of “doctors” who buy vacation homes off unauthorized and unnecessary medical treatment.

But, being the cynical refugee from the Soviet Union that I am, there’s another reason for this law.  The State of California, and the various plaintiff associations and class action attorneys, have tried to tackle the “gig” economy repeatedly. These lawsuits frequently fail (or are in the slow, expensive and fruitless process of failing).

What if someone from Task-Rabbit didn’t have to go up against Task-Rabbit and its army of lawyers? What if the Task-Rabbit freelancers could sue the homeowners they assist directly?  Without an insurance policy to cover them, there might not be enough resources to put up a real fight against a bogus claim.

Do you know who is not going to benefit from this? The day laborer. Right now, the day laborer has an advantage in the sale of his or her time and labor — lower costs because workers’ compensation insurance is not required. 

However, how is a freelancing day laborer supposed to compete against larger ventures that have regular employees and workers’ comp coverage? Who will still hire day laborers and bear the risk of a workers' comp claim when the individual could hire a company with its own coverage and licenses?

But then again, California doesn’t ask the individual worker or the individual employer what he would like. Just like California doesn’t ask business owners if they want to be forced to cover themselves with workers’ compensation. Somehow, as businesses and employers in everything but high tech continue to head for the exits, Sacramento still thinks it knows best.

Well, fine. Good luck, assemblymen and women, trying to find someone to help you deal with your tribbles.

Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.