ADJ12830624 · February 13, 2023

The Board found that defendant did not establish by a preponderance of the evidence that applicant was an independent contractor, and that applicant was an employee under the Borello test, including control and secondary factors.

From the decision · page 1Defendant seeks reconsideration of the Findings of Fact issued on January 4, 2022, wherein the workers' compensation administrative law judge (WCJ) found that applicant was an employee of Michael Paiva on January 21, 2019.

Defendant was present on the property 95% of the time applicant worked and oversaw the work.

Favours Applicant prevailed

Shows defendant retained overall control over the details of the work, supporting employee status.

From the decision · page 5Here, both applicant and defendant testified that defendant had occasion to instruct applicant as to how to perform his work and defendant testified that he was present on the property ninety-five percent of the time applicant was performing work there, a period of at least two months and two weeks. (Report, p. 3; Minutes of Hearing and Summary of Evidence, November 9, 2021, p. 8:8-9.) It follows that defendant oversaw applicant's work; and, therefore, we conclude that he retained overall control over the details of that work.

Defendant provided materials and place of work; applicant provided own tools; applicant was paid hourly and not by the job.

Favours Applicant prevailed

These factors align with the Borello secondary factors indicating employee status.

From the decision · page 5In addition, the application of Borello's secondary factors suggest that applicant's work was that of an employee. (Report, p. 3.) In particular, the record (1) shows that defendant provided the materials and place of work; (2) does not show that applicant was engaged in a distinct occupation or business, was paid by the job, or exercised the skill required of a specialist without supervision; and (3) shows that defendant provided the materials and place of work while applicant provided his own tools. (Opinion on Decision, pp. 2-3; Minutes of Hearing and Summary of Evidence, November 9, 2021, pp. 3:8-9:3; Ex. 1, Employee Ledger, November 5 2018-January 23, 2019.) Hence the weight of the evidence applicable to the secondary Borello factors shows that applicant was defendant's employee for purposes of Workers' Compensation law. Accordingly, we conclude that applicant performed work for defendant as an employee and not an independent contractor.

Applicant did not have a contractor's license and was paid in cash daily at $30/hour.

Favours Applicant prevailed

Supports the finding that applicant was an employee rather than an independent contractor.

S. G. Borello & Sons, Inc. v. Dept. of Ind. Relations (1989) 48 Cal.3d 341

Workers' Compensation Act presumes workers are employees unless proven otherwise.

The Borello test was applied to determine employment status, considering control and secondary factors.

From the decision · page 4In this case, S. G. Borello & Sons, Inc. v. Dept. of Ind. Relations (1989) 48 Cal.3d 341 [54 Cal.Comp.Cases 80] (Borello), provides the applicable standard for determining applicant's employment or independent contractor status with respect to the requirement of an employer to provide workers' compensation insurance. In Borello, the question presented was whether a cucumber grower, who had hired migratory workers to harvest its crop on the basis that the workers managed their own labor and shared in the profits of the harvested crop, was required to obtain workers' compensation coverage. The Court found that, although the grower purported to relinquish supervision of the harvest work, it retained overall control of the production and sale of the crop and, therefore, the migratory workers were employees entitled to workers' compensation coverage as a matter of law.

Applicant presented as a credible witness, and the WCJ's credibility determination was accorded great weight.