3350-3371
LABOR CODE
SECTION 3350-3371
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.