3350. Unless the context otherwise requires, the definitions set
forth in this article shall govern the construction and meaning of
the terms and phrases used in this division.
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; provided that, where the officers and
directors of the private corporation are the sole shareholders
thereof, the corporation and the officers and directors shall come
under the compensation provisions of this division only by election
as provided in subdivision (a) of Section 4151.
(d) Except as provided in subdivision (h) of Section 3352, any
person employed by the owner or occupant of a residential dwelling
whose duties are incidental to the ownership, maintenance, or use of
the dwelling, including the care and supervision of children, or
whose duties are personal and not in the course of the trade,
business, profession, or occupation of the owner or occupant.
(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; provided that where the working members
of the partnership or limited liability company are general partners
or managers, the partnership or limited liability company and the
partners or managers shall come under the compensation provisions of
this division only by election as provided in subdivision (a) of
Section 4151. If a private corporation is a general partner or
manager, "working members of a partnership or limited liability
company" shall include the corporation and the officers and directors
of the corporation, provided that the officers and directors are the
sole shareholders of the corporation. If a limited liability company
is a partner or member, "working members of the partnership or
limited liability company" shall include the managers of the limited
liability company.
(g) For the purposes of subdivisions (c) and (f), the persons
holding the power to revoke a trust as to shares of a private
corporation or as to general partnership or limited liability company
interests held in the trust, shall be deemed to be the shareholders
of the private corporation, or the general partners of the
partnership, or the managers of the limited liability company.
3351.5. "Employee" includes:
(a) Any person whose employment training is arranged by the State
Department of Rehabilitation with any employer. Such person shall be
deemed an employee of such employer for workers' compensation
purposes; provided that, the department shall bear the full amount of
any additional workers' compensation insurance premium expense
incurred by the employer due to the provisions of this section.
(b) Any person defined in subdivision (d) of Section 3351 who
performs domestic service comprising in-home supportive services
under Article 7 (commencing with Section 12300), Chapter 3, Part 3,
Division 9 of the Welfare and Institutions Code. For purposes of
Section 3352, such person shall be deemed an employee of the
recipient of such services for workers' compensation purposes if the
state or county makes or provides for direct payment to such person
or to the recipient of in-home supportive services for the purchase
of services, subject to the provisions of Section 12302.2 of the
Welfare and Institutions Code.
(c) Any person while engaged by contract for the creation of a
specially ordered or commissioned work of authorship in which the
parties expressly agree in a written instrument signed by them that
the work shall be considered a work made for hire, as defined in
Section 101 of Title 17 of the United States Code, and the ordering
or commissioning party obtains ownership of all the rights comprised
in the copyright in the work.
3352. "Employee" excludes the following:
(a) Any person defined in subdivision (d) of Section 3351 who is
employed by his or her parent, spouse, or child.
(b) Any person performing services in return for aid or sustenance
only, received from any religious, charitable, or relief
organization.
(c) Any person holding an appointment as deputy clerk or deputy
sheriff appointed for his or her own convenience, and who receives no
compensation from the county or municipal corporation or from the
citizens thereof for his or her services as the deputy. This
exclusion is operative only as to employment by the county or
municipal corporation and does not deprive any person so deputized
from recourse against a private person employing him or her for
injury occurring in the course of and arising out of the employment.
(d) Any person performing voluntary services at or for a
recreational camp, hut, or lodge operated by a nonprofit
organization, exempt from federal income tax under Section 101(6) of
the Internal Revenue Code, of which he or she or a member of his or
her family is a member and who receives no compensation for those
services other than meals, lodging, or transportation.
(e) Any person performing voluntary service as a ski patrolman who
receives no compensation for those services other than meals or
lodging or the use of ski tow or ski lift facilities.
(f) Any person employed by a ski lift operator to work at a snow
ski area who is relieved of and not performing any prescribed duties,
while participating in recreational activities on his or her own
initiative.
(g) Any person, other than a regular employee, participating in
sports or athletics who receives no compensation for the
participation other than the use of athletic equipment, uniforms,
transportation, travel, meals, lodgings, or other expenses incidental
thereto.
(h) Any person defined in subdivision (d) of Section 3351 who was
employed by the employer to be held liable for less than 52 hours
during the 90 calendar days immediately preceding the date of the
injury for injuries, as defined in Section 5411, or during the 90
calendar days immediately preceding the date of the last employment
in an occupation exposing the employee to the hazards of the disease
or injury for injuries, as defined in Section 5412, or who earned
less than one hundred dollars ($100) in wages from the employer
during the 90 calendar days immediately preceding the date of the
injury for injuries, as defined in Section 5411, or during the 90
calendar days immediately preceding the date of the last employment
in an occupation exposing the employee to the hazards of the disease
or injury for injuries, as defined in Section 5412.
(i) Any person performing voluntary service for a public agency or
a private, nonprofit organization who receives no remuneration for
the services other than meals, transportation, lodging, or
reimbursement for incidental expenses.
(j) Any person, other than a regular employee, performing
officiating services relating to amateur sporting events sponsored by
any public agency or private, nonprofit organization, who receives
no remuneration for these services other than a stipend for each day
of service no greater than the amount established by the Department
of Personnel Administration as a per diem expense for employees or
officers of the state. The stipend shall be presumed to cover
incidental expenses involved in officiating, including, but not
limited to, meals, transportation, lodging, rule books and courses,
uniforms, and appropriate equipment.
(k) Any student participating as an athlete in amateur sporting
events sponsored by any public agency, public or private nonprofit
college, university or school, who receives no remuneration for the
participation other than the use of athletic equipment, uniforms,
transportation, travel, meals, lodgings, scholarships, grants-in-aid,
or other expenses incidental thereto.
(l) Any law enforcement officer who is regularly employed by a
local or state law enforcement agency in an adjoining state and who
is deputized to work under the supervision of a California peace
officer pursuant to paragraph (4) of subdivision (a) of Section 832.6
of the Penal Code.
(m) Any law enforcement officer who is regularly employed by the
Oregon State Police, the Nevada Department of Motor Vehicles and
Public Safety, or the Arizona Department of Public Safety and who is
acting as a peace officer in this state pursuant to subdivision (a)
of Section 830.32 of the Penal Code.
(n) Any person, other than a regular employee, performing services
as a sports official for an entity sponsoring an intercollegiate or
interscholastic sports event, or any person performing services as a
sports official for a public agency, public entity, or a private
nonprofit organization, which public agency, public entity, or
private nonprofit organization sponsors an amateur sports event. For
purposes of this subdivision, "sports official" includes an umpire,
referee, judge, scorekeeper, timekeeper, or other person who is a
neutral participant in a sports event.
(o) Any person who is an owner-builder, as defined in subdivision
(a) of Section 50692 of the Health and Safety Code, who is
participating in a mutual self-help housing program, as defined in
Section 50087 of the Health and Safety Code, sponsored by a nonprofit
corporation.
3352.94. "Employee" excludes a disaster service worker while
performing services as a disaster service worker except as provided
in Chapter 10 of this part. "Employee" excludes any unregistered
person performing like services as a disaster service worker without
pay or other consideration, except as provided by Section 3211.92 of
this code.
3353. "Independent contractor" means any person who renders service
for a specified recompense for a specified result, under the control
of his principal as to the result of his work only and not as to the
means by which such result is accomplished.
3354. Employers of employees defined by subdivision (d) of Section
3351 shall not be subject to the provisions of Sections 3710, 3710.1,
3710.2, 3711, 3712, and 3722, or any other penalty provided by law,
for failure to secure the payment of compensation for such employees.
This section shall not apply to employers of employees specified
in subdivision (b) of Section 3715, with respect to such employees.
3355. As used in subdivision (d) of Section 3351, the term "course
of trade, business, profession, or occupation" includes all services
tending toward the preservation, maintenance, or operation of the
business, business premises, or business property of the employer.
3356. As used in subdivision (d) of Section 3351 and in Section
3355, the term "trade, business, profession, or occupation" includes
any undertaking actually engaged in by the employer with some degree
of regularity, irrespective of the trade name, articles of
incorporation, or principal business of the employer.
3357. Any person rendering service for another, other than as an
independent contractor, or unless expressly excluded herein, is
presumed to be an employee.
3358. Watchmen for nonindustrial establishments, paid by
subscription by several persons, are not employees under this
division. In other cases where watchmen, paid by subscription by
several persons, have at the time of the injury sustained by them
taken out and maintained in force insurance upon themselves as
self-employing persons, conferring benefits equal to those conferred
by this division, the employer is not liable under this division.
3360. Workmen associating themselves under a partnership agreement,
the principal purpose of which is the performance of the labor on a
particular piece of work are employees of the person having such work
executed. In respect to injuries which occur while such workmen
maintain in force insurance in an insurer, insuring to themselves and
all persons employed by them benefits identical with those conferred
by this division the person for whom such work is to be done is not
liable as an employer under this division.
3361. Each member registered as an active firefighting member of
any regularly organized volunteer fire department, having official
recognition, and full or partial support of the government of the
county, city, town, or district in which the volunteer fire
department is located, is an employee of that county, city, town, or
district for the purposes of this division, and is entitled to
receive compensation from the county, city, town or district in
accordance with the provisions thereof.
3361.5. Notwithstanding Section 3351, a volunteer, unsalaried
person authorized by the governing board of a recreation and park
district to perform volunteer services for the district shall, upon
the adoption of a resolution of the governing board of the district
so declaring, be deemed an employee of the district for the purposes
of this division and shall be entitled to the workers' compensation
benefits provided by this division for any injury sustained by him or
her while engaged in the performance of any service under the
direction and control of the governing board of the recreation and
park district.
3362. Each male or female member registered as an active policeman
or policewoman of any regularly organized police department having
official recognition and full or partial support of the government of
the county, city, town or district in which such police department
is located, shall, upon the adoption of a resolution by the governing
body of the county, city, town or district so declaring, be deemed
an employee of such county, city, town or district for the purpose of
this division and shall be entitled to receive compensation from
such county, city, town or district in accordance with the provisions
thereof.
3362.5. Whenever any qualified person is deputized or appointed by
the proper authority as a reserve or auxiliary sheriff or city police
officer, a deputy sheriff, or a reserve police officer of a regional
park district or a transit district, and is assigned specific police
functions by that authority, the person is an employee of the
county, city, city and county, town, or district for the purposes of
this division while performing duties as a peace officer if the
person is not performing services as a disaster service worker for
purposes of Chapter 10 (commencing with Section 4351).
3363. Each member registered with the Department of Fish and Game
as an active member of the reserve fish and game warden program of
the department is an employee of the department for the purposes of
this division, and is entitled to receive compensation from the
department in accordance with the provisions thereof.
3363.5. (a) Notwithstanding Sections 3351, 3352, and 3357, a person
who performs voluntary service without pay for a public agency, as
designated and authorized by the governing body of the agency or its
designee, shall, upon adoption of a resolution by the governing body
of the agency so declaring, be deemed to be an employee of the agency
for purposes of this division while performing such service.
(b) For purposes of this section, "voluntary service without pay"
shall include services performed by any person, who receives no
remuneration other than meals, transportation, lodging, or
reimbursement for incidental expenses.
3363.6. (a) Notwithstanding Sections 3351, 3352, and 3357, a person
who performs voluntary service without pay for a private, nonprofit
organization, as designated and authorized by the board of directors
of the organization, shall, when the board of directors of the
organization, in its sole discretion, so declares in writing and
prior to the injury, be deemed an employee of the organization for
purposes of this division while performing such service.
(b) For purposes of this section, "voluntary service without pay"
shall include the performance of services by a parent, without
remuneration in cash, when rendered to a cooperative parent
participation nursery school if such service is required as a
condition of participation in the organization.
(c) For purposes of this section, "voluntary service without pay"
shall include the performance of services by a person who receives no
remuneration other than meals, transportation, lodging, or
reimbursement for incidental expenses.
3364. Notwithstanding subdivision (c) of Section 3352, a volunteer,
unsalaried member of a sheriff's reserve in any county who is not
deemed an employee of the county under Section 3362.5, shall, upon
the adoption of a resolution of the board of supervisors declaring
that the member is deemed an employee of the county for the purposes
of this division, be entitled to the workers' compensation benefits
provided by this division for any injury sustained by him or her
while engaged in the performance of any active law enforcement
service under the direction and control of the sheriff.
3364.5. Notwithstanding Section 3351 of the Labor Code, a
volunteer, unsalaried person authorized by the governing board of a
school district or the county superintendent of schools to perform
volunteer services for the school district or the county
superintendent shall, upon the adoption of a resolution of the
governing board of the school district or the county board of
education so declaring, be deemed an employee of the district or the
county superintendent for the purposes of this division and shall be
entitled to the workmen's compensation benefits provided by this
division for any injury sustained by him while engaged in the
performance of any service under the direction and control of the
governing board of the school district or the county superintendent.
3364.55. A ward of the juvenile court engaged in rehabilitative
work without pay, under an assignment by order of the juvenile court
to a work project on public property within the jurisdiction of any
governmental entity, including the federal government, shall, upon
the adoption of a resolution of the board of supervisors declaring
that such ward is deemed an employee of the county for purposes of
this division, be entitled to the workers' compensation benefits
provided by this division for injury sustained while in the
performance of such assigned work project, provided:
(a) That such ward shall not be entitled to any temporary
disability indemnity benefits.
(b) That in determining permanent disability benefits, average
weekly earnings shall be taken at the minimum provided therefor in
Section 4453.
3364.6. Notwithstanding Sections 3351 and 3352, juvenile traffic
offenders pursuant to Section 564 of the Welfare and Institutions
Code, or juvenile probationers pursuant to subdivision (a) of Section
725 of the Welfare and Institutions Code, engaged in rehabilitative
work without pay, under an assignment by order of the juvenile court
to a work project on public property within the jurisdiction of any
governmental entity, including the federal government, shall, upon
the adoption of a resolution of the board of supervisors declaring
that such traffic offenders or probationers, or both such groups,
shall be deemed employees of the county for purposes of this
division, be entitled to the workers' compensation benefits provided
by this division for injury sustained while in the performance of
such assigned work project, provided:
(a) That such traffic offender or probationer shall not be
entitled to any temporary disability indemnity benefits.
(b) That in determining permanent disability benefits, average
weekly earnings shall be taken at the minimum provided therefor in
Section 4453.
3364.7. Notwithstanding Sections 3351 and 3352, a ward of the
juvenile court committed to a regional youth educational facility
pursuant to Article 24.5 (commencing with Section 894), engaged in
rehabilitative work without pay on public property within the
jurisdiction of any governmental entity, including the federal
government, shall, upon the adoption of a resolution of the board of
supervisors declaring that such wards shall be deemed employees of
the county for purposes of this division, be entitled to the workers'
compensation benefits provided by this division for injury sustained
while in the performance of such public work project, provided:
(a) That the ward shall not be entitled to any disability
indemnity benefits.
(b) That in determining permanent disability benefits, average
weekly earnings shall be taken at the minimum provided therefor in
Section 4453.
3365. For the purposes of this division:
(a) Except as provided in subdivisions (b) and (c), each person
engaged in suppressing a fire pursuant to Section 4153 or 4436 of the
Public Resources Code, and each person (other than an independent
contractor or an employee of an independent contractor) engaged in
suppressing a fire at the request of a public officer or employee
charged with the duty of preventing or suppressing fires, is deemed,
except when the entity is the United States or an agency thereof, to
be an employee of the public entity that he is serving or assisting
in the suppression of the fire, and is entitled to receive
compensation from such public entity in accordance with the
provisions of this division. When the entity being served is the
United States or an agency thereof, the State Department of
Corrections shall be deemed the employer and the cost of workers'
compensation may be considered in fixing the reimbursement paid by
the United States for the service of prisoners. A person is engaged
in suppressing a fire only during the period he (1) is actually
fighting the fire, (2) is being transported to or from the fire, or
(3) is engaged in training exercises for fire suppression.
(b) A member of the armed forces of the United States while
serving under military command in suppressing a fire is not an
employee of a public entity.
(c) Neither a person who contracts to furnish aircraft with pilots
to a public entity for fire prevention or suppression service, nor
his employees, shall be deemed to be employees of the public entity;
but a person who contracts to furnish aircraft to a public entity for
fire prevention or suppression service and to pilot the aircraft
himself shall be deemed to be an employee of the public entity.
3366. (a) For the purposes of this division, each person engaged in
the performance of active law enforcement service as part of the
posse comitatus or power of the county, and each person (other than
an independent contractor or an employee of an independent
contractor) engaged in assisting any peace officer in active law
enforcement service at the request of such peace officer, is deemed
to be an employee of the public entity that he or she is serving or
assisting in the enforcement of the law, and is entitled to receive
compensation from the public entity in accordance with the provisions
of this division.
(b) Nothing in this section shall be construed to provide workers'
compensation benefits to a person who is any of the following:
(1) A law enforcement officer who is regularly employed by a local
or state law enforcement agency in an adjoining state and who is
deputized to work under the supervision of a California peace officer
pursuant to paragraph (4) of subdivision (a) of Section 832.6 of the
Penal Code.
(2) A law enforcement officer who is regularly employed by the
Oregon State Police, the Nevada Department of Motor Vehicles and
Public Safety, or the Arizona Department of Public Safety and who is
acting as a peace officer in this state pursuant to subdivision (a)
of Section 830.32 of the Penal Code.
3367. (a) For purposes of this division any person voluntarily
rendering technical assistance to a public entity to prevent a fire,
explosion, or other hazardous occurrence, at the request of a duly
authorized fire or law enforcement officer of that public entity is
deemed an employee of the public entity to whom the technical
assistance was rendered, and is entitled to receive compensation
benefits in accordance with the provisions of this division.
Rendering technical assistance shall include the time that person is
traveling to, or returning from, the location of the potentially
hazardous condition for which he or she has been requested to
volunteer his or her assistance.
(b) Nothing in this section shall be construed to provide workers'
compensation benefits to a person who is any of the following:
(1) A law enforcement officer who is regularly employed by a local
or state law enforcement agency in an adjoining state and who is
deputized to work under the supervision of a California peace officer
pursuant to paragraph (4) of subdivision (a) of Section 832.6 of the
Penal Code.
(2) A law enforcement officer who is regularly employed by the
Oregon State Police, the Nevada Department of Motor Vehicles and
Public Safety, or the Arizona Department of Public Safety and who is
acting as a peace officer in this state pursuant to subdivision (a)
of Section 830.32 of the Penal Code.
3368. Notwithstanding any provision of this code or the Education
Code to the contrary, the school district, county superintendent of
schools, or any school administered by the State Department of
Education under whose supervision work experience education,
cooperative vocational education, or community classrooms, as defined
by regulations adopted by the Superintendent of Public Instruction,
or student apprenticeship programs registered by the Division of
Apprenticeship Standards for registered student apprentices, are
provided, shall be considered the employer under Division 4
(commencing with Section 3200) of persons receiving this training
unless the persons during the training are being paid a cash wage or
salary by a private employer. However, in the case of students being
paid a cash wage or salary by a private employer in supervised work
experience education or cooperative vocational education, or in the
case of registered student apprentices, the school district, county
superintendent of schools, or any school administered by the State
Department of Education may elect to provide workers' compensation
coverage, unless the person or firm under whom the persons are
receiving work experience or occupational training elects to provide
workers' compensation coverage. If the school district or other
educational agency elects to provide workers' compensation coverage
for students being paid a cash wage or salary by a private employer
in supervised work experience education or cooperative vocational
education, it may only be for a transitional period not to exceed
three months. A registered student apprentice is a registered
apprentice who is (1) at least 16 years of age, (2) a full-time high
school student in the 10th, 11th, or 12th grade, and (3) in an
apprenticeship program for registered student apprentices registered
with the Division of Apprenticeship Standards. An apprentice, while
attending related and supplemental instruction classes, shall be
considered to be in the employ of the apprentice's employer and not
subject to this section, unless the apprentice is unemployed.
Whenever this work experience education, cooperative vocational
education, community classroom education, or student apprenticeship
program registered by the Division of Apprenticeship Standards for
registered student apprentices, is under the supervision of a
regional occupational center or program operated by two or more
school districts pursuant to Section 52301 of the Education Code, the
district of residence of the persons receiving the training shall be
deemed the employer for the purposes of this section.
3369. The inclusion of any person or groups of persons within the
coverage of this division shall not cause any such person or group of
persons to be within the coverage of any other statute unless any
other such statute expressly so provides.
3370. (a) Each inmate of a state penal or correctional institution
shall be entitled to the workers' compensation benefits provided by
this division for injury arising out of and in the course of assigned
employment and for the death of the inmate if the injury proximately
causes death, subject to all of the following conditions:
(1) The inmate was not injured as the result of an assault in
which the inmate was the initial aggressor, or as the result of the
intentional act of the inmate injuring himself or herself.
(2) The inmate shall not be entitled to any temporary disability
indemnity benefits while incarcerated in a state prison.
(3) No benefits shall be paid to an inmate while he or she is
incarcerated. The period of benefit payment shall instead commence
upon release from incarceration. If an inmate who has been released
from incarceration, and has been receiving benefits under this
section, is reincarcerated in a city or county jail, or state penal
or correctional institution, the benefits shall cease immediately
upon the inmate's reincarceration and shall not be paid for the
duration of the reincarceration.
(4) This section shall not be construed to provide for the payment
to an inmate, upon release from incarceration, of temporary
disability benefits which were not paid due to the prohibition of
paragraph (2).
(5) In determining temporary and permanent disability indemnity
benefits for the inmate, the average weekly earnings shall be taken
at not more than the minimum amount set forth in Section 4453.
(6) Where a dispute exists respecting an inmate's rights to the
workers' compensation benefits provided herein, the inmate may file
an application with the appeals board to resolve the dispute. The
application may be filed at any time during the inmate's
incarceration.
(7) After release or discharge from a correctional institution,
the former inmate shall have one year in which to file an original
application with the appeals board, unless the time of injury is such
that it would allow more time under Section 5804 of the Labor Code.
(8) The percentage of disability to total disability shall be
determined as for the occupation of a laborer of like age by applying
the schedule for the determination of the percentages of permanent
disabilities prepared and adopted by the administrative director.
(9) This division shall be the exclusive remedy against the state
for injuries occurring while engaged in assigned work or work under
contract. Nothing in this division shall affect any right or remedy
of an injured inmate for injuries not compensated by this division.
(b) The Department of Corrections shall present to each inmate of
a state penal or correctional institution, prior to his or her first
assignment to work at the institution, a printed statement of his or
her rights under this division, and a description of procedures to be
followed in filing for benefits under this section. The statement
shall be approved by the administrative director and be posted in a
conspicuous place at each place where an inmate works.
(c) Notwithstanding any other provision of this division, the
Department of Corrections shall have medical control over treatment
provided an injured inmate while incarcerated in a state prison,
except, that in serious cases, the inmate is entitled, upon request,
to the services of a consulting physician.
(d) Paragraphs (2), (3), and (4) of subdivision (a) shall also be
applicable to an inmate of a state penal or correctional institution
who would otherwise be entitled to receive workers' compensation
benefits based on an injury sustained prior to his or her
incarceration. However, temporary and permanent disability benefits
which, except for this subdivision, would otherwise be payable to an
inmate during incarceration based on an injury sustained prior to
incarceration shall be paid to the dependents of the inmate. If the
inmate has no dependents, the temporary disability benefits which,
except for this subdivision, would otherwise be payable during the
inmate's incarceration shall be paid to the State Treasury to the
credit of the Uninsured Employers Fund, and the permanent disability
benefits which would otherwise be payable during the inmate's
incarceration shall be held in trust for the inmate by the Department
of Corrections during the period of incarceration.
For purposes of this subdivision, "dependents" means the inmate's
spouse or children, including an inmate's former spouse due to
divorce and the inmate's children from that marriage.
(e) Notwithstanding any other provision of this division, an
employee who is an inmate, as defined in subdivision (e) of Section
3351 who is eligible for vocational rehabilitation services as
defined in Section 4635 shall only be eligible for direct placement
services.
3371. If the issues are complex or if the inmate applicant
requests, the Department of Corrections shall furnish a list of
qualified workers' compensation attorneys to permit the inmate
applicant to choose an attorney to represent him or her before the
appeals board.
3350. Unless the context otherwise requires, the definitions set
forth in this article shall govern the construction and meaning of
the terms and phrases used in this division.
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; provided that, where the officers and
directors of the private corporation are the sole shareholders
thereof, the corporation and the officers and directors shall come
under the compensation provisions of this division only by election
as provided in subdivision (a) of Section 4151.
(d) Except as provided in subdivision (h) of Section 3352, any
person employed by the owner or occupant of a residential dwelling
whose duties are incidental to the ownership, maintenance, or use of
the dwelling, including the care and supervision of children, or
whose duties are personal and not in the course of the trade,
business, profession, or occupation of the owner or occupant.
(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; provided that where the working members
of the partnership or limited liability company are general partners
or managers, the partnership or limited liability company and the
partners or managers shall come under the compensation provisions of
this division only by election as provided in subdivision (a) of
Section 4151. If a private corporation is a general partner or
manager, "working members of a partnership or limited liability
company" shall include the corporation and the officers and directors
of the corporation, provided that the officers and directors are the
sole shareholders of the corporation. If a limited liability company
is a partner or member, "working members of the partnership or
limited liability company" shall include the managers of the limited
liability company.
(g) For the purposes of subdivisions (c) and (f), the persons
holding the power to revoke a trust as to shares of a private
corporation or as to general partnership or limited liability company
interests held in the trust, shall be deemed to be the shareholders
of the private corporation, or the general partners of the
partnership, or the managers of the limited liability company.
3351.5. "Employee" includes:
(a) Any person whose employment training is arranged by the State
Department of Rehabilitation with any employer. Such person shall be
deemed an employee of such employer for workers' compensation
purposes; provided that, the department shall bear the full amount of
any additional workers' compensation insurance premium expense
incurred by the employer due to the provisions of this section.
(b) Any person defined in subdivision (d) of Section 3351 who
performs domestic service comprising in-home supportive services
under Article 7 (commencing with Section 12300), Chapter 3, Part 3,
Division 9 of the Welfare and Institutions Code. For purposes of
Section 3352, such person shall be deemed an employee of the
recipient of such services for workers' compensation purposes if the
state or county makes or provides for direct payment to such person
or to the recipient of in-home supportive services for the purchase
of services, subject to the provisions of Section 12302.2 of the
Welfare and Institutions Code.
(c) Any person while engaged by contract for the creation of a
specially ordered or commissioned work of authorship in which the
parties expressly agree in a written instrument signed by them that
the work shall be considered a work made for hire, as defined in
Section 101 of Title 17 of the United States Code, and the ordering
or commissioning party obtains ownership of all the rights comprised
in the copyright in the work.
3352. "Employee" excludes the following:
(a) Any person defined in subdivision (d) of Section 3351 who is
employed by his or her parent, spouse, or child.
(b) Any person performing services in return for aid or sustenance
only, received from any religious, charitable, or relief
organization.
(c) Any person holding an appointment as deputy clerk or deputy
sheriff appointed for his or her own convenience, and who receives no
compensation from the county or municipal corporation or from the
citizens thereof for his or her services as the deputy. This
exclusion is operative only as to employment by the county or
municipal corporation and does not deprive any person so deputized
from recourse against a private person employing him or her for
injury occurring in the course of and arising out of the employment.
(d) Any person performing voluntary services at or for a
recreational camp, hut, or lodge operated by a nonprofit
organization, exempt from federal income tax under Section 101(6) of
the Internal Revenue Code, of which he or she or a member of his or
her family is a member and who receives no compensation for those
services other than meals, lodging, or transportation.
(e) Any person performing voluntary service as a ski patrolman who
receives no compensation for those services other than meals or
lodging or the use of ski tow or ski lift facilities.
(f) Any person employed by a ski lift operator to work at a snow
ski area who is relieved of and not performing any prescribed duties,
while participating in recreational activities on his or her own
initiative.
(g) Any person, other than a regular employee, participating in
sports or athletics who receives no compensation for the
participation other than the use of athletic equipment, uniforms,
transportation, travel, meals, lodgings, or other expenses incidental
thereto.
(h) Any person defined in subdivision (d) of Section 3351 who was
employed by the employer to be held liable for less than 52 hours
during the 90 calendar days immediately preceding the date of the
injury for injuries, as defined in Section 5411, or during the 90
calendar days immediately preceding the date of the last employment
in an occupation exposing the employee to the hazards of the disease
or injury for injuries, as defined in Section 5412, or who earned
less than one hundred dollars ($100) in wages from the employer
during the 90 calendar days immediately preceding the date of the
injury for injuries, as defined in Section 5411, or during the 90
calendar days immediately preceding the date of the last employment
in an occupation exposing the employee to the hazards of the disease
or injury for injuries, as defined in Section 5412.
(i) Any person performing voluntary service for a public agency or
a private, nonprofit organization who receives no remuneration for
the services other than meals, transportation, lodging, or
reimbursement for incidental expenses.
(j) Any person, other than a regular employee, performing
officiating services relating to amateur sporting events sponsored by
any public agency or private, nonprofit organization, who receives
no remuneration for these services other than a stipend for each day
of service no greater than the amount established by the Department
of Personnel Administration as a per diem expense for employees or
officers of the state. The stipend shall be presumed to cover
incidental expenses involved in officiating, including, but not
limited to, meals, transportation, lodging, rule books and courses,
uniforms, and appropriate equipment.
(k) Any student participating as an athlete in amateur sporting
events sponsored by any public agency, public or private nonprofit
college, university or school, who receives no remuneration for the
participation other than the use of athletic equipment, uniforms,
transportation, travel, meals, lodgings, scholarships, grants-in-aid,
or other expenses incidental thereto.
(l) Any law enforcement officer who is regularly employed by a
local or state law enforcement agency in an adjoining state and who
is deputized to work under the supervision of a California peace
officer pursuant to paragraph (4) of subdivision (a) of Section 832.6
of the Penal Code.
(m) Any law enforcement officer who is regularly employed by the
Oregon State Police, the Nevada Department of Motor Vehicles and
Public Safety, or the Arizona Department of Public Safety and who is
acting as a peace officer in this state pursuant to subdivision (a)
of Section 830.32 of the Penal Code.
(n) Any person, other than a regular employee, performing services
as a sports official for an entity sponsoring an intercollegiate or
interscholastic sports event, or any person performing services as a
sports official for a public agency, public entity, or a private
nonprofit organization, which public agency, public entity, or
private nonprofit organization sponsors an amateur sports event. For
purposes of this subdivision, "sports official" includes an umpire,
referee, judge, scorekeeper, timekeeper, or other person who is a
neutral participant in a sports event.
(o) Any person who is an owner-builder, as defined in subdivision
(a) of Section 50692 of the Health and Safety Code, who is
participating in a mutual self-help housing program, as defined in
Section 50087 of the Health and Safety Code, sponsored by a nonprofit
corporation.
3352.94. "Employee" excludes a disaster service worker while
performing services as a disaster service worker except as provided
in Chapter 10 of this part. "Employee" excludes any unregistered
person performing like services as a disaster service worker without
pay or other consideration, except as provided by Section 3211.92 of
this code.
3353. "Independent contractor" means any person who renders service
for a specified recompense for a specified result, under the control
of his principal as to the result of his work only and not as to the
means by which such result is accomplished.
3354. Employers of employees defined by subdivision (d) of Section
3351 shall not be subject to the provisions of Sections 3710, 3710.1,
3710.2, 3711, 3712, and 3722, or any other penalty provided by law,
for failure to secure the payment of compensation for such employees.
This section shall not apply to employers of employees specified
in subdivision (b) of Section 3715, with respect to such employees.
3355. As used in subdivision (d) of Section 3351, the term "course
of trade, business, profession, or occupation" includes all services
tending toward the preservation, maintenance, or operation of the
business, business premises, or business property of the employer.
3356. As used in subdivision (d) of Section 3351 and in Section
3355, the term "trade, business, profession, or occupation" includes
any undertaking actually engaged in by the employer with some degree
of regularity, irrespective of the trade name, articles of
incorporation, or principal business of the employer.
3357. Any person rendering service for another, other than as an
independent contractor, or unless expressly excluded herein, is
presumed to be an employee.
3358. Watchmen for nonindustrial establishments, paid by
subscription by several persons, are not employees under this
division. In other cases where watchmen, paid by subscription by
several persons, have at the time of the injury sustained by them
taken out and maintained in force insurance upon themselves as
self-employing persons, conferring benefits equal to those conferred
by this division, the employer is not liable under this division.
3360. Workmen associating themselves under a partnership agreement,
the principal purpose of which is the performance of the labor on a
particular piece of work are employees of the person having such work
executed. In respect to injuries which occur while such workmen
maintain in force insurance in an insurer, insuring to themselves and
all persons employed by them benefits identical with those conferred
by this division the person for whom such work is to be done is not
liable as an employer under this division.
3361. Each member registered as an active firefighting member of
any regularly organized volunteer fire department, having official
recognition, and full or partial support of the government of the
county, city, town, or district in which the volunteer fire
department is located, is an employee of that county, city, town, or
district for the purposes of this division, and is entitled to
receive compensation from the county, city, town or district in
accordance with the provisions thereof.
3361.5. Notwithstanding Section 3351, a volunteer, unsalaried
person authorized by the governing board of a recreation and park
district to perform volunteer services for the district shall, upon
the adoption of a resolution of the governing board of the district
so declaring, be deemed an employee of the district for the purposes
of this division and shall be entitled to the workers' compensation
benefits provided by this division for any injury sustained by him or
her while engaged in the performance of any service under the
direction and control of the governing board of the recreation and
park district.
3362. Each male or female member registered as an active policeman
or policewoman of any regularly organized police department having
official recognition and full or partial support of the government of
the county, city, town or district in which such police department
is located, shall, upon the adoption of a resolution by the governing
body of the county, city, town or district so declaring, be deemed
an employee of such county, city, town or district for the purpose of
this division and shall be entitled to receive compensation from
such county, city, town or district in accordance with the provisions
thereof.
3362.5. Whenever any qualified person is deputized or appointed by
the proper authority as a reserve or auxiliary sheriff or city police
officer, a deputy sheriff, or a reserve police officer of a regional
park district or a transit district, and is assigned specific police
functions by that authority, the person is an employee of the
county, city, city and county, town, or district for the purposes of
this division while performing duties as a peace officer if the
person is not performing services as a disaster service worker for
purposes of Chapter 10 (commencing with Section 4351).
3363. Each member registered with the Department of Fish and Game
as an active member of the reserve fish and game warden program of
the department is an employee of the department for the purposes of
this division, and is entitled to receive compensation from the
department in accordance with the provisions thereof.
3363.5. (a) Notwithstanding Sections 3351, 3352, and 3357, a person
who performs voluntary service without pay for a public agency, as
designated and authorized by the governing body of the agency or its
designee, shall, upon adoption of a resolution by the governing body
of the agency so declaring, be deemed to be an employee of the agency
for purposes of this division while performing such service.
(b) For purposes of this section, "voluntary service without pay"
shall include services performed by any person, who receives no
remuneration other than meals, transportation, lodging, or
reimbursement for incidental expenses.
3363.6. (a) Notwithstanding Sections 3351, 3352, and 3357, a person
who performs voluntary service without pay for a private, nonprofit
organization, as designated and authorized by the board of directors
of the organization, shall, when the board of directors of the
organization, in its sole discretion, so declares in writing and
prior to the injury, be deemed an employee of the organization for
purposes of this division while performing such service.
(b) For purposes of this section, "voluntary service without pay"
shall include the performance of services by a parent, without
remuneration in cash, when rendered to a cooperative parent
participation nursery school if such service is required as a
condition of participation in the organization.
(c) For purposes of this section, "voluntary service without pay"
shall include the performance of services by a person who receives no
remuneration other than meals, transportation, lodging, or
reimbursement for incidental expenses.
3364. Notwithstanding subdivision (c) of Section 3352, a volunteer,
unsalaried member of a sheriff's reserve in any county who is not
deemed an employee of the county under Section 3362.5, shall, upon
the adoption of a resolution of the board of supervisors declaring
that the member is deemed an employee of the county for the purposes
of this division, be entitled to the workers' compensation benefits
provided by this division for any injury sustained by him or her
while engaged in the performance of any active law enforcement
service under the direction and control of the sheriff.
3364.5. Notwithstanding Section 3351 of the Labor Code, a
volunteer, unsalaried person authorized by the governing board of a
school district or the county superintendent of schools to perform
volunteer services for the school district or the county
superintendent shall, upon the adoption of a resolution of the
governing board of the school district or the county board of
education so declaring, be deemed an employee of the district or the
county superintendent for the purposes of this division and shall be
entitled to the workmen's compensation benefits provided by this
division for any injury sustained by him while engaged in the
performance of any service under the direction and control of the
governing board of the school district or the county superintendent.
3364.55. A ward of the juvenile court engaged in rehabilitative
work without pay, under an assignment by order of the juvenile court
to a work project on public property within the jurisdiction of any
governmental entity, including the federal government, shall, upon
the adoption of a resolution of the board of supervisors declaring
that such ward is deemed an employee of the county for purposes of
this division, be entitled to the workers' compensation benefits
provided by this division for injury sustained while in the
performance of such assigned work project, provided:
(a) That such ward shall not be entitled to any temporary
disability indemnity benefits.
(b) That in determining permanent disability benefits, average
weekly earnings shall be taken at the minimum provided therefor in
Section 4453.
3364.6. Notwithstanding Sections 3351 and 3352, juvenile traffic
offenders pursuant to Section 564 of the Welfare and Institutions
Code, or juvenile probationers pursuant to subdivision (a) of Section
725 of the Welfare and Institutions Code, engaged in rehabilitative
work without pay, under an assignment by order of the juvenile court
to a work project on public property within the jurisdiction of any
governmental entity, including the federal government, shall, upon
the adoption of a resolution of the board of supervisors declaring
that such traffic offenders or probationers, or both such groups,
shall be deemed employees of the county for purposes of this
division, be entitled to the workers' compensation benefits provided
by this division for injury sustained while in the performance of
such assigned work project, provided:
(a) That such traffic offender or probationer shall not be
entitled to any temporary disability indemnity benefits.
(b) That in determining permanent disability benefits, average
weekly earnings shall be taken at the minimum provided therefor in
Section 4453.
3364.7. Notwithstanding Sections 3351 and 3352, a ward of the
juvenile court committed to a regional youth educational facility
pursuant to Article 24.5 (commencing with Section 894), engaged in
rehabilitative work without pay on public property within the
jurisdiction of any governmental entity, including the federal
government, shall, upon the adoption of a resolution of the board of
supervisors declaring that such wards shall be deemed employees of
the county for purposes of this division, be entitled to the workers'
compensation benefits provided by this division for injury sustained
while in the performance of such public work project, provided:
(a) That the ward shall not be entitled to any disability
indemnity benefits.
(b) That in determining permanent disability benefits, average
weekly earnings shall be taken at the minimum provided therefor in
Section 4453.
3365. For the purposes of this division:
(a) Except as provided in subdivisions (b) and (c), each person
engaged in suppressing a fire pursuant to Section 4153 or 4436 of the
Public Resources Code, and each person (other than an independent
contractor or an employee of an independent contractor) engaged in
suppressing a fire at the request of a public officer or employee
charged with the duty of preventing or suppressing fires, is deemed,
except when the entity is the United States or an agency thereof, to
be an employee of the public entity that he is serving or assisting
in the suppression of the fire, and is entitled to receive
compensation from such public entity in accordance with the
provisions of this division. When the entity being served is the
United States or an agency thereof, the State Department of
Corrections shall be deemed the employer and the cost of workers'
compensation may be considered in fixing the reimbursement paid by
the United States for the service of prisoners. A person is engaged
in suppressing a fire only during the period he (1) is actually
fighting the fire, (2) is being transported to or from the fire, or
(3) is engaged in training exercises for fire suppression.
(b) A member of the armed forces of the United States while
serving under military command in suppressing a fire is not an
employee of a public entity.
(c) Neither a person who contracts to furnish aircraft with pilots
to a public entity for fire prevention or suppression service, nor
his employees, shall be deemed to be employees of the public entity;
but a person who contracts to furnish aircraft to a public entity for
fire prevention or suppression service and to pilot the aircraft
himself shall be deemed to be an employee of the public entity.
3366. (a) For the purposes of this division, each person engaged in
the performance of active law enforcement service as part of the
posse comitatus or power of the county, and each person (other than
an independent contractor or an employee of an independent
contractor) engaged in assisting any peace officer in active law
enforcement service at the request of such peace officer, is deemed
to be an employee of the public entity that he or she is serving or
assisting in the enforcement of the law, and is entitled to receive
compensation from the public entity in accordance with the provisions
of this division.
(b) Nothing in this section shall be construed to provide workers'
compensation benefits to a person who is any of the following:
(1) A law enforcement officer who is regularly employed by a local
or state law enforcement agency in an adjoining state and who is
deputized to work under the supervision of a California peace officer
pursuant to paragraph (4) of subdivision (a) of Section 832.6 of the
Penal Code.
(2) A law enforcement officer who is regularly employed by the
Oregon State Police, the Nevada Department of Motor Vehicles and
Public Safety, or the Arizona Department of Public Safety and who is
acting as a peace officer in this state pursuant to subdivision (a)
of Section 830.32 of the Penal Code.
3367. (a) For purposes of this division any person voluntarily
rendering technical assistance to a public entity to prevent a fire,
explosion, or other hazardous occurrence, at the request of a duly
authorized fire or law enforcement officer of that public entity is
deemed an employee of the public entity to whom the technical
assistance was rendered, and is entitled to receive compensation
benefits in accordance with the provisions of this division.
Rendering technical assistance shall include the time that person is
traveling to, or returning from, the location of the potentially
hazardous condition for which he or she has been requested to
volunteer his or her assistance.
(b) Nothing in this section shall be construed to provide workers'
compensation benefits to a person who is any of the following:
(1) A law enforcement officer who is regularly employed by a local
or state law enforcement agency in an adjoining state and who is
deputized to work under the supervision of a California peace officer
pursuant to paragraph (4) of subdivision (a) of Section 832.6 of the
Penal Code.
(2) A law enforcement officer who is regularly employed by the
Oregon State Police, the Nevada Department of Motor Vehicles and
Public Safety, or the Arizona Department of Public Safety and who is
acting as a peace officer in this state pursuant to subdivision (a)
of Section 830.32 of the Penal Code.
3368. Notwithstanding any provision of this code or the Education
Code to the contrary, the school district, county superintendent of
schools, or any school administered by the State Department of
Education under whose supervision work experience education,
cooperative vocational education, or community classrooms, as defined
by regulations adopted by the Superintendent of Public Instruction,
or student apprenticeship programs registered by the Division of
Apprenticeship Standards for registered student apprentices, are
provided, shall be considered the employer under Division 4
(commencing with Section 3200) of persons receiving this training
unless the persons during the training are being paid a cash wage or
salary by a private employer. However, in the case of students being
paid a cash wage or salary by a private employer in supervised work
experience education or cooperative vocational education, or in the
case of registered student apprentices, the school district, county
superintendent of schools, or any school administered by the State
Department of Education may elect to provide workers' compensation
coverage, unless the person or firm under whom the persons are
receiving work experience or occupational training elects to provide
workers' compensation coverage. If the school district or other
educational agency elects to provide workers' compensation coverage
for students being paid a cash wage or salary by a private employer
in supervised work experience education or cooperative vocational
education, it may only be for a transitional period not to exceed
three months. A registered student apprentice is a registered
apprentice who is (1) at least 16 years of age, (2) a full-time high
school student in the 10th, 11th, or 12th grade, and (3) in an
apprenticeship program for registered student apprentices registered
with the Division of Apprenticeship Standards. An apprentice, while
attending related and supplemental instruction classes, shall be
considered to be in the employ of the apprentice's employer and not
subject to this section, unless the apprentice is unemployed.
Whenever this work experience education, cooperative vocational
education, community classroom education, or student apprenticeship
program registered by the Division of Apprenticeship Standards for
registered student apprentices, is under the supervision of a
regional occupational center or program operated by two or more
school districts pursuant to Section 52301 of the Education Code, the
district of residence of the persons receiving the training shall be
deemed the employer for the purposes of this section.
3369. The inclusion of any person or groups of persons within the
coverage of this division shall not cause any such person or group of
persons to be within the coverage of any other statute unless any
other such statute expressly so provides.
3370. (a) Each inmate of a state penal or correctional institution
shall be entitled to the workers' compensation benefits provided by
this division for injury arising out of and in the course of assigned
employment and for the death of the inmate if the injury proximately
causes death, subject to all of the following conditions:
(1) The inmate was not injured as the result of an assault in
which the inmate was the initial aggressor, or as the result of the
intentional act of the inmate injuring himself or herself.
(2) The inmate shall not be entitled to any temporary disability
indemnity benefits while incarcerated in a state prison.
(3) No benefits shall be paid to an inmate while he or she is
incarcerated. The period of benefit payment shall instead commence
upon release from incarceration. If an inmate who has been released
from incarceration, and has been receiving benefits under this
section, is reincarcerated in a city or county jail, or state penal
or correctional institution, the benefits shall cease immediately
upon the inmate's reincarceration and shall not be paid for the
duration of the reincarceration.
(4) This section shall not be construed to provide for the payment
to an inmate, upon release from incarceration, of temporary
disability benefits which were not paid due to the prohibition of
paragraph (2).
(5) In determining temporary and permanent disability indemnity
benefits for the inmate, the average weekly earnings shall be taken
at not more than the minimum amount set forth in Section 4453.
(6) Where a dispute exists respecting an inmate's rights to the
workers' compensation benefits provided herein, the inmate may file
an application with the appeals board to resolve the dispute. The
application may be filed at any time during the inmate's
incarceration.
(7) After release or discharge from a correctional institution,
the former inmate shall have one year in which to file an original
application with the appeals board, unless the time of injury is such
that it would allow more time under Section 5804 of the Labor Code.
(8) The percentage of disability to total disability shall be
determined as for the occupation of a laborer of like age by applying
the schedule for the determination of the percentages of permanent
disabilities prepared and adopted by the administrative director.
(9) This division shall be the exclusive remedy against the state
for injuries occurring while engaged in assigned work or work under
contract. Nothing in this division shall affect any right or remedy
of an injured inmate for injuries not compensated by this division.
(b) The Department of Corrections shall present to each inmate of
a state penal or correctional institution, prior to his or her first
assignment to work at the institution, a printed statement of his or
her rights under this division, and a description of procedures to be
followed in filing for benefits under this section. The statement
shall be approved by the administrative director and be posted in a
conspicuous place at each place where an inmate works.
(c) Notwithstanding any other provision of this division, the
Department of Corrections shall have medical control over treatment
provided an injured inmate while incarcerated in a state prison,
except, that in serious cases, the inmate is entitled, upon request,
to the services of a consulting physician.
(d) Paragraphs (2), (3), and (4) of subdivision (a) shall also be
applicable to an inmate of a state penal or correctional institution
who would otherwise be entitled to receive workers' compensation
benefits based on an injury sustained prior to his or her
incarceration. However, temporary and permanent disability benefits
which, except for this subdivision, would otherwise be payable to an
inmate during incarceration based on an injury sustained prior to
incarceration shall be paid to the dependents of the inmate. If the
inmate has no dependents, the temporary disability benefits which,
except for this subdivision, would otherwise be payable during the
inmate's incarceration shall be paid to the State Treasury to the
credit of the Uninsured Employers Fund, and the permanent disability
benefits which would otherwise be payable during the inmate's
incarceration shall be held in trust for the inmate by the Department
of Corrections during the period of incarceration.
For purposes of this subdivision, "dependents" means the inmate's
spouse or children, including an inmate's former spouse due to
divorce and the inmate's children from that marriage.
(e) Notwithstanding any other provision of this division, an
employee who is an inmate, as defined in subdivision (e) of Section
3351 who is eligible for vocational rehabilitation services as
defined in Section 4635 shall only be eligible for direct placement
services.
3371. If the issues are complex or if the inmate applicant
requests, the Department of Corrections shall furnish a list of
qualified workers' compensation attorneys to permit the inmate
applicant to choose an attorney to represent him or her before the
appeals board.
3350. Unless the context otherwise requires, the definitions set
forth in this article shall govern the construction and meaning of
the terms and phrases used in this division.
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; provided that, where the officers and
directors of the private corporation are the sole shareholders
thereof, the corporation and the officers and directors shall come
under the compensation provisions of this division only by election
as provided in subdivision (a) of Section 4151.
(d) Except as provided in subdivision (h) of Section 3352, any
person employed by the owner or occupant of a residential dwelling
whose duties are incidental to the ownership, maintenance, or use of
the dwelling, including the care and supervision of children, or
whose duties are personal and not in the course of the trade,
business, profession, or occupation of the owner or occupant.
(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; provided that where the working members
of the partnership or limited liability company are general partners
or managers, the partnership or limited liability company and the
partners or managers shall come under the compensation provisions of
this division only by election as provided in subdivision (a) of
Section 4151. If a private corporation is a general partner or
manager, "working members of a partnership or limited liability
company" shall include the corporation and the officers and directors
of the corporation, provided that the officers and directors are the
sole shareholders of the corporation. If a limited liability company
is a partner or member, "working members of the partnership or
limited liability company" shall include the managers of the limited
liability company.
(g) For the purposes of subdivisions (c) and (f), the persons
holding the power to revoke a trust as to shares of a private
corporation or as to general partnership or limited liability company
interests held in the trust, shall be deemed to be the shareholders
of the private corporation, or the general partners of the
partnership, or the managers of the limited liability company.
3351.5. "Employee" includes:
(a) Any person whose employment training is arranged by the State
Department of Rehabilitation with any employer. Such person shall be
deemed an employee of such employer for workers' compensation
purposes; provided that, the department shall bear the full amount of
any additional workers' compensation insurance premium expense
incurred by the employer due to the provisions of this section.
(b) Any person defined in subdivision (d) of Section 3351 who
performs domestic service comprising in-home supportive services
under Article 7 (commencing with Section 12300), Chapter 3, Part 3,
Division 9 of the Welfare and Institutions Code. For purposes of
Section 3352, such person shall be deemed an employee of the
recipient of such services for workers' compensation purposes if the
state or county makes or provides for direct payment to such person
or to the recipient of in-home supportive services for the purchase
of services, subject to the provisions of Section 12302.2 of the
Welfare and Institutions Code.
(c) Any person while engaged by contract for the creation of a
specially ordered or commissioned work of authorship in which the
parties expressly agree in a written instrument signed by them that
the work shall be considered a work made for hire, as defined in
Section 101 of Title 17 of the United States Code, and the ordering
or commissioning party obtains ownership of all the rights comprised
in the copyright in the work.
3352. "Employee" excludes the following:
(a) Any person defined in subdivision (d) of Section 3351 who is
employed by his or her parent, spouse, or child.
(b) Any person performing services in return for aid or sustenance
only, received from any religious, charitable, or relief
organization.
(c) Any person holding an appointment as deputy clerk or deputy
sheriff appointed for his or her own convenience, and who receives no
compensation from the county or municipal corporation or from the
citizens thereof for his or her services as the deputy. This
exclusion is operative only as to employment by the county or
municipal corporation and does not deprive any person so deputized
from recourse against a private person employing him or her for
injury occurring in the course of and arising out of the employment.
(d) Any person performing voluntary services at or for a
recreational camp, hut, or lodge operated by a nonprofit
organization, exempt from federal income tax under Section 101(6) of
the Internal Revenue Code, of which he or she or a member of his or
her family is a member and who receives no compensation for those
services other than meals, lodging, or transportation.
(e) Any person performing voluntary service as a ski patrolman who
receives no compensation for those services other than meals or
lodging or the use of ski tow or ski lift facilities.
(f) Any person employed by a ski lift operator to work at a snow
ski area who is relieved of and not performing any prescribed duties,
while participating in recreational activities on his or her own
initiative.
(g) Any person, other than a regular employee, participating in
sports or athletics who receives no compensation for the
participation other than the use of athletic equipment, uniforms,
transportation, travel, meals, lodgings, or other expenses incidental
thereto.
(h) Any person defined in subdivision (d) of Section 3351 who was
employed by the employer to be held liable for less than 52 hours
during the 90 calendar days immediately preceding the date of the
injury for injuries, as defined in Section 5411, or during the 90
calendar days immediately preceding the date of the last employment
in an occupation exposing the employee to the hazards of the disease
or injury for injuries, as defined in Section 5412, or who earned
less than one hundred dollars ($100) in wages from the employer
during the 90 calendar days immediately preceding the date of the
injury for injuries, as defined in Section 5411, or during the 90
calendar days immediately preceding the date of the last employment
in an occupation exposing the employee to the hazards of the disease
or injury for injuries, as defined in Section 5412.
(i) Any person performing voluntary service for a public agency or
a private, nonprofit organization who receives no remuneration for
the services other than meals, transportation, lodging, or
reimbursement for incidental expenses.
(j) Any person, other than a regular employee, performing
officiating services relating to amateur sporting events sponsored by
any public agency or private, nonprofit organization, who receives
no remuneration for these services other than a stipend for each day
of service no greater than the amount established by the Department
of Personnel Administration as a per diem expense for employees or
officers of the state. The stipend shall be presumed to cover
incidental expenses involved in officiating, including, but not
limited to, meals, transportation, lodging, rule books and courses,
uniforms, and appropriate equipment.
(k) Any student participating as an athlete in amateur sporting
events sponsored by any public agency, public or private nonprofit
college, university or school, who receives no remuneration for the
participation other than the use of athletic equipment, uniforms,
transportation, travel, meals, lodgings, scholarships, grants-in-aid,
or other expenses incidental thereto.
(l) Any law enforcement officer who is regularly employed by a
local or state law enforcement agency in an adjoining state and who
is deputized to work under the supervision of a California peace
officer pursuant to paragraph (4) of subdivision (a) of Section 832.6
of the Penal Code.
(m) Any law enforcement officer who is regularly employed by the
Oregon State Police, the Nevada Department of Motor Vehicles and
Public Safety, or the Arizona Department of Public Safety and who is
acting as a peace officer in this state pursuant to subdivision (a)
of Section 830.32 of the Penal Code.
(n) Any person, other than a regular employee, performing services
as a sports official for an entity sponsoring an intercollegiate or
interscholastic sports event, or any person performing services as a
sports official for a public agency, public entity, or a private
nonprofit organization, which public agency, public entity, or
private nonprofit organization sponsors an amateur sports event. For
purposes of this subdivision, "sports official" includes an umpire,
referee, judge, scorekeeper, timekeeper, or other person who is a
neutral participant in a sports event.
(o) Any person who is an owner-builder, as defined in subdivision
(a) of Section 50692 of the Health and Safety Code, who is
participating in a mutual self-help housing program, as defined in
Section 50087 of the Health and Safety Code, sponsored by a nonprofit
corporation.
3352.94. "Employee" excludes a disaster service worker while
performing services as a disaster service worker except as provided
in Chapter 10 of this part. "Employee" excludes any unregistered
person performing like services as a disaster service worker without
pay or other consideration, except as provided by Section 3211.92 of
this code.
3353. "Independent contractor" means any person who renders service
for a specified recompense for a specified result, under the control
of his principal as to the result of his work only and not as to the
means by which such result is accomplished.
3354. Employers of employees defined by subdivision (d) of Section
3351 shall not be subject to the provisions of Sections 3710, 3710.1,
3710.2, 3711, 3712, and 3722, or any other penalty provided by law,
for failure to secure the payment of compensation for such employees.
This section shall not apply to employers of employees specified
in subdivision (b) of Section 3715, with respect to such employees.
3355. As used in subdivision (d) of Section 3351, the term "course
of trade, business, profession, or occupation" includes all services
tending toward the preservation, maintenance, or operation of the
business, business premises, or business property of the employer.
3356. As used in subdivision (d) of Section 3351 and in Section
3355, the term "trade, business, profession, or occupation" includes
any undertaking actually engaged in by the employer with some degree
of regularity, irrespective of the trade name, articles of
incorporation, or principal business of the employer.
3357. Any person rendering service for another, other than as an
independent contractor, or unless expressly excluded herein, is
presumed to be an employee.
3358. Watchmen for nonindustrial establishments, paid by
subscription by several persons, are not employees under this
division. In other cases where watchmen, paid by subscription by
several persons, have at the time of the injury sustained by them
taken out and maintained in force insurance upon themselves as
self-employing persons, conferring benefits equal to those conferred
by this division, the employer is not liable under this division.
3360. Workmen associating themselves under a partnership agreement,
the principal purpose of which is the performance of the labor on a
particular piece of work are employees of the person having such work
executed. In respect to injuries which occur while such workmen
maintain in force insurance in an insurer, insuring to themselves and
all persons employed by them benefits identical with those conferred
by this division the person for whom such work is to be done is not
liable as an employer under this division.
3361. Each member registered as an active firefighting member of
any regularly organized volunteer fire department, having official
recognition, and full or partial support of the government of the
county, city, town, or district in which the volunteer fire
department is located, is an employee of that county, city, town, or
district for the purposes of this division, and is entitled to
receive compensation from the county, city, town or district in
accordance with the provisions thereof.
3361.5. Notwithstanding Section 3351, a volunteer, unsalaried
person authorized by the governing board of a recreation and park
district to perform volunteer services for the district shall, upon
the adoption of a resolution of the governing board of the district
so declaring, be deemed an employee of the district for the purposes
of this division and shall be entitled to the workers' compensation
benefits provided by this division for any injury sustained by him or
her while engaged in the performance of any service under the
direction and control of the governing board of the recreation and
park district.
3362. Each male or female member registered as an active policeman
or policewoman of any regularly organized police department having
official recognition and full or partial support of the government of
the county, city, town or district in which such police department
is located, shall, upon the adoption of a resolution by the governing
body of the county, city, town or district so declaring, be deemed
an employee of such county, city, town or district for the purpose of
this division and shall be entitled to receive compensation from
such county, city, town or district in accordance with the provisions
thereof.
3362.5. Whenever any qualified person is deputized or appointed by
the proper authority as a reserve or auxiliary sheriff or city police
officer, a deputy sheriff, or a reserve police officer of a regional
park district or a transit district, and is assigned specific police
functions by that authority, the person is an employee of the
county, city, city and county, town, or district for the purposes of
this division while performing duties as a peace officer if the
person is not performing services as a disaster service worker for
purposes of Chapter 10 (commencing with Section 4351).
3363. Each member registered with the Department of Fish and Game
as an active member of the reserve fish and game warden program of
the department is an employee of the department for the purposes of
this division, and is entitled to receive compensation from the
department in accordance with the provisions thereof.
3363.5. (a) Notwithstanding Sections 3351, 3352, and 3357, a person
who performs voluntary service without pay for a public agency, as
designated and authorized by the governing body of the agency or its
designee, shall, upon adoption of a resolution by the governing body
of the agency so declaring, be deemed to be an employee of the agency
for purposes of this division while performing such service.
(b) For purposes of this section, "voluntary service without pay"
shall include services performed by any person, who receives no
remuneration other than meals, transportation, lodging, or
reimbursement for incidental expenses.
3363.6. (a) Notwithstanding Sections 3351, 3352, and 3357, a person
who performs voluntary service without pay for a private, nonprofit
organization, as designated and authorized by the board of directors
of the organization, shall, when the board of directors of the
organization, in its sole discretion, so declares in writing and
prior to the injury, be deemed an employee of the organization for
purposes of this division while performing such service.
(b) For purposes of this section, "voluntary service without pay"
shall include the performance of services by a parent, without
remuneration in cash, when rendered to a cooperative parent
participation nursery school if such service is required as a
condition of participation in the organization.
(c) For purposes of this section, "voluntary service without pay"
shall include the performance of services by a person who receives no
remuneration other than meals, transportation, lodging, or
reimbursement for incidental expenses.
3364. Notwithstanding subdivision (c) of Section 3352, a volunteer,
unsalaried member of a sheriff's reserve in any county who is not
deemed an employee of the county under Section 3362.5, shall, upon
the adoption of a resolution of the board of supervisors declaring
that the member is deemed an employee of the county for the purposes
of this division, be entitled to the workers' compensation benefits
provided by this division for any injury sustained by him or her
while engaged in the performance of any active law enforcement
service under the direction and control of the sheriff.
3364.5. Notwithstanding Section 3351 of the Labor Code, a
volunteer, unsalaried person authorized by the governing board of a
school district or the county superintendent of schools to perform
volunteer services for the school district or the county
superintendent shall, upon the adoption of a resolution of the
governing board of the school district or the county board of
education so declaring, be deemed an employee of the district or the
county superintendent for the purposes of this division and shall be
entitled to the workmen's compensation benefits provided by this
division for any injury sustained by him while engaged in the
performance of any service under the direction and control of the
governing board of the school district or the county superintendent.
3364.55. A ward of the juvenile court engaged in rehabilitative
work without pay, under an assignment by order of the juvenile court
to a work project on public property within the jurisdiction of any
governmental entity, including the federal government, shall, upon
the adoption of a resolution of the board of supervisors declaring
that such ward is deemed an employee of the county for purposes of
this division, be entitled to the workers' compensation benefits
provided by this division for injury sustained while in the
performance of such assigned work project, provided:
(a) That such ward shall not be entitled to any temporary
disability indemnity benefits.
(b) That in determining permanent disability benefits, average
weekly earnings shall be taken at the minimum provided therefor in
Section 4453.
3364.6. Notwithstanding Sections 3351 and 3352, juvenile traffic
offenders pursuant to Section 564 of the Welfare and Institutions
Code, or juvenile probationers pursuant to subdivision (a) of Section
725 of the Welfare and Institutions Code, engaged in rehabilitative
work without pay, under an assignment by order of the juvenile court
to a work project on public property within the jurisdiction of any
governmental entity, including the federal government, shall, upon
the adoption of a resolution of the board of supervisors declaring
that such traffic offenders or probationers, or both such groups,
shall be deemed employees of the county for purposes of this
division, be entitled to the workers' compensation benefits provided
by this division for injury sustained while in the performance of
such assigned work project, provided:
(a) That such traffic offender or probationer shall not be
entitled to any temporary disability indemnity benefits.
(b) That in determining permanent disability benefits, average
weekly earnings shall be taken at the minimum provided therefor in
Section 4453.
3364.7. Notwithstanding Sections 3351 and 3352, a ward of the
juvenile court committed to a regional youth educational facility
pursuant to Article 24.5 (commencing with Section 894), engaged in
rehabilitative work without pay on public property within the
jurisdiction of any governmental entity, including the federal
government, shall, upon the adoption of a resolution of the board of
supervisors declaring that such wards shall be deemed employees of
the county for purposes of this division, be entitled to the workers'
compensation benefits provided by this division for injury sustained
while in the performance of such public work project, provided:
(a) That the ward shall not be entitled to any disability
indemnity benefits.
(b) That in determining permanent disability benefits, average
weekly earnings shall be taken at the minimum provided therefor in
Section 4453.
3365. For the purposes of this division:
(a) Except as provided in subdivisions (b) and (c), each person
engaged in suppressing a fire pursuant to Section 4153 or 4436 of the
Public Resources Code, and each person (other than an independent
contractor or an employee of an independent contractor) engaged in
suppressing a fire at the request of a public officer or employee
charged with the duty of preventing or suppressing fires, is deemed,
except when the entity is the United States or an agency thereof, to
be an employee of the public entity that he is serving or assisting
in the suppression of the fire, and is entitled to receive
compensation from such public entity in accordance with the
provisions of this division. When the entity being served is the
United States or an agency thereof, the State Department of
Corrections shall be deemed the employer and the cost of workers'
compensation may be considered in fixing the reimbursement paid by
the United States for the service of prisoners. A person is engaged
in suppressing a fire only during the period he (1) is actually
fighting the fire, (2) is being transported to or from the fire, or
(3) is engaged in training exercises for fire suppression.
(b) A member of the armed forces of the United States while
serving under military command in suppressing a fire is not an
employee of a public entity.
(c) Neither a person who contracts to furnish aircraft with pilots
to a public entity for fire prevention or suppression service, nor
his employees, shall be deemed to be employees of the public entity;
but a person who contracts to furnish aircraft to a public entity for
fire prevention or suppression service and to pilot the aircraft
himself shall be deemed to be an employee of the public entity.
3366. (a) For the purposes of this division, each person engaged in
the performance of active law enforcement service as part of the
posse comitatus or power of the county, and each person (other than
an independent contractor or an employee of an independent
contractor) engaged in assisting any peace officer in active law
enforcement service at the request of such peace officer, is deemed
to be an employee of the public entity that he or she is serving or
assisting in the enforcement of the law, and is entitled to receive
compensation from the public entity in accordance with the provisions
of this division.
(b) Nothing in this section shall be construed to provide workers'
compensation benefits to a person who is any of the following:
(1) A law enforcement officer who is regularly employed by a local
or state law enforcement agency in an adjoining state and who is
deputized to work under the supervision of a California peace officer
pursuant to paragraph (4) of subdivision (a) of Section 832.6 of the
Penal Code.
(2) A law enforcement officer who is regularly employed by the
Oregon State Police, the Nevada Department of Motor Vehicles and
Public Safety, or the Arizona Department of Public Safety and who is
acting as a peace officer in this state pursuant to subdivision (a)
of Section 830.32 of the Penal Code.
3367. (a) For purposes of this division any person voluntarily
rendering technical assistance to a public entity to prevent a fire,
explosion, or other hazardous occurrence, at the request of a duly
authorized fire or law enforcement officer of that public entity is
deemed an employee of the public entity to whom the technical
assistance was rendered, and is entitled to receive compensation
benefits in accordance with the provisions of this division.
Rendering technical assistance shall include the time that person is
traveling to, or returning from, the location of the potentially
hazardous condition for which he or she has been requested to
volunteer his or her assistance.
(b) Nothing in this section shall be construed to provide workers'
compensation benefits to a person who is any of the following:
(1) A law enforcement officer who is regularly employed by a local
or state law enforcement agency in an adjoining state and who is
deputized to work under the supervision of a California peace officer
pursuant to paragraph (4) of subdivision (a) of Section 832.6 of the
Penal Code.
(2) A law enforcement officer who is regularly employed by the
Oregon State Police, the Nevada Department of Motor Vehicles and
Public Safety, or the Arizona Department of Public Safety and who is
acting as a peace officer in this state pursuant to subdivision (a)
of Section 830.32 of the Penal Code.
3368. Notwithstanding any provision of this code or the Education
Code to the contrary, the school district, county superintendent of
schools, or any school administered by the State Department of
Education under whose supervision work experience education,
cooperative vocational education, or community classrooms, as defined
by regulations adopted by the Superintendent of Public Instruction,
or student apprenticeship programs registered by the Division of
Apprenticeship Standards for registered student apprentices, are
provided, shall be considered the employer under Division 4
(commencing with Section 3200) of persons receiving this training
unless the persons during the training are being paid a cash wage or
salary by a private employer. However, in the case of students being
paid a cash wage or salary by a private employer in supervised work
experience education or cooperative vocational education, or in the
case of registered student apprentices, the school district, county
superintendent of schools, or any school administered by the State
Department of Education may elect to provide workers' compensation
coverage, unless the person or firm under whom the persons are
receiving work experience or occupational training elects to provide
workers' compensation coverage. If the school district or other
educational agency elects to provide workers' compensation coverage
for students being paid a cash wage or salary by a private employer
in supervised work experience education or cooperative vocational
education, it may only be for a transitional period not to exceed
three months. A registered student apprentice is a registered
apprentice who is (1) at least 16 years of age, (2) a full-time high
school student in the 10th, 11th, or 12th grade, and (3) in an
apprenticeship program for registered student apprentices registered
with the Division of Apprenticeship Standards. An apprentice, while
attending related and supplemental instruction classes, shall be
considered to be in the employ of the apprentice's employer and not
subject to this section, unless the apprentice is unemployed.
Whenever this work experience education, cooperative vocational
education, community classroom education, or student apprenticeship
program registered by the Division of Apprenticeship Standards for
registered student apprentices, is under the supervision of a
regional occupational center or program operated by two or more
school districts pursuant to Section 52301 of the Education Code, the
district of residence of the persons receiving the training shall be
deemed the employer for the purposes of this section.
3369. The inclusion of any person or groups of persons within the
coverage of this division shall not cause any such person or group of
persons to be within the coverage of any other statute unless any
other such statute expressly so provides.
3370. (a) Each inmate of a state penal or correctional institution
shall be entitled to the workers' compensation benefits provided by
this division for injury arising out of and in the course of assigned
employment and for the death of the inmate if the injury proximately
causes death, subject to all of the following conditions:
(1) The inmate was not injured as the result of an assault in
which the inmate was the initial aggressor, or as the result of the
intentional act of the inmate injuring himself or herself.
(2) The inmate shall not be entitled to any temporary disability
indemnity benefits while incarcerated in a state prison.
(3) No benefits shall be paid to an inmate while he or she is
incarcerated. The period of benefit payment shall instead commence
upon release from incarceration. If an inmate who has been released
from incarceration, and has been receiving benefits under this
section, is reincarcerated in a city or county jail, or state penal
or correctional institution, the benefits shall cease immediately
upon the inmate's reincarceration and shall not be paid for the
duration of the reincarceration.
(4) This section shall not be construed to provide for the payment
to an inmate, upon release from incarceration, of temporary
disability benefits which were not paid due to the prohibition of
paragraph (2).
(5) In determining temporary and permanent disability indemnity
benefits for the inmate, the average weekly earnings shall be taken
at not more than the minimum amount set forth in Section 4453.
(6) Where a dispute exists respecting an inmate's rights to the
workers' compensation benefits provided herein, the inmate may file
an application with the appeals board to resolve the dispute. The
application may be filed at any time during the inmate's
incarceration.
(7) After release or discharge from a correctional institution,
the former inmate shall have one year in which to file an original
application with the appeals board, unless the time of injury is such
that it would allow more time under Section 5804 of the Labor Code.
(8) The percentage of disability to total disability shall be
determined as for the occupation of a laborer of like age by applying
the schedule for the determination of the percentages of permanent
disabilities prepared and adopted by the administrative director.
(9) This division shall be the exclusive remedy against the state
for injuries occurring while engaged in assigned work or work under
contract. Nothing in this division shall affect any right or remedy
of an injured inmate for injuries not compensated by this division.
(b) The Department of Corrections shall present to each inmate of
a state penal or correctional institution, prior to his or her first
assignment to work at the institution, a printed statement of his or
her rights under this division, and a description of procedures to be
followed in filing for benefits under this section. The statement
shall be approved by the administrative director and be posted in a
conspicuous place at each place where an inmate works.
(c) Notwithstanding any other provision of this division, the
Department of Corrections shall have medical control over treatment
provided an injured inmate while incarcerated in a state prison,
except, that in serious cases, the inmate is entitled, upon request,
to the services of a consulting physician.
(d) Paragraphs (2), (3), and (4) of subdivision (a) shall also be
applicable to an inmate of a state penal or correctional institution
who would otherwise be entitled to receive workers' compensation
benefits based on an injury sustained prior to his or her
incarceration. However, temporary and permanent disability benefits
which, except for this subdivision, would otherwise be payable to an
inmate during incarceration based on an injury sustained prior to
incarceration shall be paid to the dependents of the inmate. If the
inmate has no dependents, the temporary disability benefits which,
except for this subdivision, would otherwise be payable during the
inmate's incarceration shall be paid to the State Treasury to the
credit of the Uninsured Employers Fund, and the permanent disability
benefits which would otherwise be payable during the inmate's
incarceration shall be held in trust for the inmate by the Department
of Corrections during the period of incarceration.
For purposes of this subdivision, "dependents" means the inmate's
spouse or children, including an inmate's former spouse due to
divorce and the inmate's children from that marriage.
(e) Notwithstanding any other provision of this division, an
employee who is an inmate, as defined in subdivision (e) of Section
3351 who is eligible for vocational rehabilitation services as
defined in Section 4635 shall only be eligible for direct placement
services.
3371. If the issues are complex or if the inmate applicant
requests, the Department of Corrections shall furnish a list of
qualified workers' compensation attorneys to permit the inmate
applicant to choose an attorney to represent him or her before the
appeals board.
