Q: What benefit does training an employee give to an employer if the employee is not hired?

A: Generally, injuries arising out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties are compensable when the activities are a reasonable expectancy of, or expressly or impliedly required by, the employment. Labor Code section 3600(a)(9). Prior to the enactment of Labor Code section 3600(a)(9), in 1978, injuries during these types of activities were compensable as incidental to and within the course of the employment only when they occurred “on the employer’s premises during a lunch or recreation period as a regular incident of employment or in cases where the employer has expressly or impliedly required participation or attendance at the function or where the employer derives a substantial direct benefit from the employee’s attendance at the function or his engagement in an athletic activity, beyond the intangible value of improvement in the employee’s health or morals that is common to all kinds of recreation and social life, or where the activity is one contemplated by the contract of employment and the opportunity to engage in it is a part of the consideration to the employee for entering into the contract.” United Parcel Service of America, Inc. v. I.A.C. (Byington) (1959) 172 Cal. App. 2d 73, 75, 76, 342 P.2d 41, 24 Cal. Comp. Cases 170 .

This language was used by the legislature to exclude from workers’ compensation coverage injuries sustained while performing activities only remotely connected with the employee’s work, so as not to deter employers from encouraging or sponsoring such personal employee activities due to the risk of incurring increased costs for workers’ compensation insurance.

Generally, the furnishing of a place for the recreational activity, the supplying of minimal materials, or the expending of minimal funds in support of the activity is not sufficient to bring the activity within the scope of the employment contract.

Persons, other than regular employees, who are injured through participation in sports or athletics for which they receive no remuneration other than the use of athletic equipment, uniforms, transportation, travel, meals, lodgings, or other incidental expenses are specifically excluded from employee status under the workers’ compensation law by statute. This in my opinion could include persons being trained.

When there is proof that an injured person was at the time of the injury performing services for another, not as an independent contractor or under other circumstances excluded from coverage under the workers’ compensation law, the injured person is presumed to be an employee. Labor Code section 3357 is clear that any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.

If the alleged employer denies any employment relationship, it becomes necessary to determine whether an employment contract existed between the parties. However my opinion is that if the training renders service to the employer or confers a benefit on the employer the applicant is legally an employee for California Workers’ Compensation purposes.

I can only write that the law generally presumes one is an employee when rending a service or performing services for another which includes conferring a benefit on the employer. Further this standard tends to be liberally construed due to Labor Code section 3202 mandated interpretation by the California Workers’ Compensation Appeals Board. These cases are very fact specific and vary from case to case. Thus any claim under these circumstances requires a full good-faith investigation pursuant to Title 8, California Code of Regulations section 10109 before accepting or denying the case.

In answer to the question I would have to write “I don’t know” but if we can prove none we can defend the case. There is even a case that holds an employee playing baseball on an employer’s team is industrial (Ezzy v. W.C.A.B. (1983) 146 Cal. App. 3d 252, 261-263, 194 Cal. Rptr. 90, 48 Cal. Comp. Cases 611) so the general state of the law is these claims for injuries during training can be and have been found to be compensable. This is because of the statutorily liberal nature of our system in California.