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AB 206, Championing Day Laborers And Illegal Immigrant Workers For Workers' Comp Benefits, Reintroduced To California Assembly With Stricken And Added Language
By Lonce Lamonte - January 7, 2018

On January 4, 2018, the California Assembly amended some language in a year-old bill, AB 206, which did not pass the legislature last year.  AB 206, introduced by Assembly Member Lorena Gonzalez Fletcher of Chula Vista, was reintroduced for the 2018 session and in one place struck the language that read “remove the exclusion for an employee who was employed, or was contracted to be employed, for less than 52 hours”.

This bill has been characterized by the California Applicants’ Attorneys’ Association (CAAA) as the day laborer bill, seeking to provide workers’ compensation benefits for day laborers who work less than 52 hours or earn less than $100 from a residential home owner or renter within 90 days.  But in fact, it touches on a lot more than day laborers, which leads one to question this misleading characterization, or mischaracterization. 

For numerous years, the Labor Code has provided residential employers with the exemption that they can hire occasional baby sitters, repairmen, cleaning ladies, errand boys, myriad casual domestic workers and yard workers without the burden of a workers’ compensation policy.  The Labor Code protects residential employers by not burdening them with the reporting requirements and policy expenses demanded from a workers’ compensation policy.  Instead, it allows them to hire “employees” which are exempt from workers’ compensation if the employees work less than 52 hours in a 90 day period or earn less than $100 in a 90 day period.  And for employees who work more than 52 hours in 90 days or earn more than $100, they are covered for workers’ compensation under a homeowners’ or renters’ insurance policy. 

One can see on the face that Lorena Gonzalez Fletcher is a Democrat representing Chula Vista.  Anyone seated at Costco in Chula Vista on Broadway Street can hear almost no English being spoken in the food court.  The language from the first draft remains of: “This bill would specify that the above definition of employee applies without regard to immigration status.”  Some added language right after it reads, “… included within the above definition of an employee, a person who is a day laborer, as defined…”  This requests that within the original language of the definition of an employee, such as “including the care and supervision of children, or whose duties are personal…” the phrase day laborer be added. 

Gonzalez Fletcher wants to make sure that the words “day laborer” are pounded into this bill, as in her Section 1, Labor Code Section 3351 (d), the definition of employee is now amended to read “… any person, including a day laborer, 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.  This subdivision applies without regard to immigration status.”  

She’s championing illegal day laborers. 

Not that that’s a bad thing.  Day laborers are a good thing.  However, besides illegal Mexican day laborers being existent in Chula Vista, the city is full of home owners and renters.  Each one of those home owners and renters who has a homeowners’ insurance policy, will face significantly more expense to their policies if laborers working less than 52 hours in ninety days or earning less than $100 in ninety days become eligible for workers’ compensation.  

As it is now, these workers have the right to file tort claims in civil court, and if they gain the right to file for workers’ compensation, as well, they will have both—having their cake and eating it too.  This negligence tort case right against home owners and renters plus workers’ compensation has not even been addressed by this bill, and therefore to give that dual right to this small group of workers could put these residential employers at great risk for much undeserved punishment.

Since the insurance code is also not addressed, there is no protection for insureds against multitudes of homeowners’ policies that presently don’t cover residential employees working less than 52 hours in 90 days.  If they become eligible for workers’ comp, many employers will be illegally uninsured and suddenly vulnerable in the face of fines and penalties from the Department of Labor Standards enforcement.  Then add to that the possibility of liens from the Uninsured Employers’ Benefits Trust Fund (UEBTF), a state agency that pays for the comp claims of employees of illegally uninsured employers.  UEBTF can take possession of any personal property to satisfy their lien in a comp case.  This poses a significant risk for household residents hiring casual labor.

It seems Lorena Gonzalez Fletcher listened to the homeowners and renters in Chula Vista and elsewhere as this bill received push-back last year. That's likely why she took out the language demanding removal of the exclusion. 

It seems this bill is unnecessary as day laborers who earn more than $100 within 90 days are eligible for workers’ compensation benefits through homeowners' policies as they exist in standard now, just like baby sitters and cleaning ladies are eligible. The “without regard to immigration status” is another appeal for Mexican non-legal residents. Gonzalez Fletcher is really cow-towing to her constituents. That political question is couched here:  Should illegal aliens be eligible for workers’ compensation? 

They have been eligible for over 100 years. California presently stands in firm opposition to President Donald Trump and his policies and attitudes as California digs in its heels as a sanctuary state.

Henceforth, it doesn’t seem that redundancy over that issue is required here with AB 206.  And, without it, Fletcher is just going after the addition of the “day laborer” verbiage in the current Labor Code. The preexisting language of Labor Code Section 3351 and 3352, if read by a sober mind, already embraces day laborers.  The word doesn’t have to be spelled out.

Thus, it doesn’t appear that AB 206 has a lot of substance. However, it’s been edited and reintroduced to the California 2018 Assembly. 

 

lonce@adjustercom.com; copyright Lonce LaMon and adjustercom; all rights reserved

 
 

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