I used to love mowing my lawn, clipping my hedges, and pruning the trees around my house. It took some time to do it right, but I know my yard looked nice. That all ended when I had my first child 10 months ago and soon realized I did not have the same amount of time to spend outside making my green lawn even greener. I swallowed my pride and hired a gardener.

Around that same time my wife and I received perhaps our greatest baby gift of all time…free home cleaning for a year paid for by relative. Now both the inside and outside of my property was maintained and I never gave it a second thought until I switched my practice to Workers Compensation defense and I realized I may be considered an employer.

Labor Code section 3357 creates the presumption that any person rendering services for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee. Fortunately, Labor Code section 3351(d) and 3352(h) provide an exception for the definition of an employee in this situation.

Labor Code 3351 (d) reads:

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.

Labor Code section3352 (h) provides:

(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.

My home is a standard three bedroom model, with little more than a postage stamp sized yard. My gardener is efficient and gets the work done in about an hour and a half a week, and the cleaners are in and out in about the same amount of time. Thus, pursuant to the code, I am safe. At least that is what I thought until I read the decision of Duenas v. WCAB, WC 2658101.

In the matter of Duneas, which was ruled upon by the Second District Court of Appeals in August 2010, the Court was presented with a decision by Board which held that a landscaper who was hired to replant some flower beds at the Duenas home was an employee. In the Duenas matter, Duenas hired landscaper Ayala to work at his private residence planting new flowers. Duenas also previously employed Ayala to work landscaping some apartments, but the WCJ found that Ayala’s work on the home residence was the only employment of relevance.

However, the Board did not consider whether the landscaper was an excluded employee and outside the coverage for workers compensation benefits under Labor Code section 3352, Subdivision (h).

What I found most troubling is how the labor code, which clearly carves out an exception, still found itself before the Appellate Court because the Workers Compensation Appeals Board failed to recognize the exception. To be completely accurate, the Board found that Duenas offered no evidence to rebut the presumption of section 3357. Duenas argued that he was not given the opportunity to rebut the presumption.

Correctly, the Appellate Court found that there was a presumption that Ayala was an employee. However, the Court noted that once that threshold was met, the Board should have addressed whether the facts supported a finding that Ayala was excluded as an employee pursuant to 3351, subdivision (d), and 3352, subdivision (h).

The Duenas case is not published and is not to be cited as authority. Regardless, cases such as this are good reminders that an exclusion or defense not raised can be lost.