Hurdles in Proving “Seasonal” Employment
“’Seasonal work’ means employment as a daily hire, a project hire, or an annual season hire.” (8 CCR 10116.9(q)). Demonstrating that an employee is a seasonal worker can have significant impact on periods of temporary disability, as well as on indemnity rates. Some panel decisions highlight the difficulty facing a defendant in proving not only that an applicant was a seasonal employee for the defendant employer, but also that the applicant did not have “off-season” wages for other employers.
The panel decision of Garibay v. Silverado Farming Co., 2019 Cal. Wrk. Comp. P.D. LEXIS 57 primarily involved issues on rating of a PQME report, but also the applicant’s permanent disability indemnity rate. The case demonstrates the benefit of affirmatively showing the applicant had no “off-season” wages with other employers. There was a stipulation to the applicant’s earnings for the defendant employer but a dispute over the permanent disability indemnity rate stemming from whether applicant was a seasonal worker. The WCJ issued an Award for permanent disability at the rate of $290 per week. Defendant Petitioned for Reconsideration on issues including that the permanent disability rate was incorrectly determined.
The applicant in Garibay testified she was employed on a seasonal basis for the defendant employer. No evidence appears to have been presented as to whether the applicant had any off-season earnings, nor what the applicant’s earnings were prior to working for the defendant. The panel decision returned the issue of the applicant’s earnings for permanent disability rate purposes to the trial level for further development of the record. Despite uncontradicted evidence the applicant was a seasonal worker for the defendant employer, the Garibay decision appears to put the burden of proof on the defendant to show a lack of “off-season” earnings rather than on the applicant to produce evidence of additional earnings.
More recently, the panel decision of Gamez v. Cal Enter. Labor Solutions, 2020 Cal. Wrk. Comp. P.D. LEXIS 143 involves an applicant who was alleged to be a seasonal employee for temporary disability purposes. At an expedited hearing, the issues included the applicant’s entitlement to temporary disability and whether the applicant was a regular, temporary, or seasonal worker. Defendant alleged applicant was a seasonal worker and thus ineligible for temporary disability benefits in the off-season period. Based largely on employment paperwork, but also the applicant’s testimony, the WCJ determined the applicant was not a seasonal employee.
The applicant in Gamez testified that he was not told at the time of hire whether or not he was a seasonal employee. There is no indication in the decision indicating the applicant provided any testimony that he believed himself to be a regular (non-seasonal) employee. Paperwork completed at the time of hiring did not indicate seasonal employment, but rather gave the period of employment as being from January 2018 to January 2019. The WCJ discusses that the employer provided labor services in various crops with different seasons throughout the year, and the applicant could have potentially worked in multiple crops throughout the year.
Two defense witnesses testified that the applicant was a seasonal worker. However, neither of the witnesses was involved in the hiring of the applicant. The only document which stated the employee was seasonal was an accident report prepared after the applicant’s injury.
The WCJ determined that the hiring documentation was more persuasive than the testimony of defense witnesses who were not directly involved in the applicants hiring, or in post-injury paperwork. It was found that “Applicant’s employment was not limited to one or any particular number of seasons. His employment may have continued following the completion of specific duties he was fulfilling.” (Gamez at pg. 6). The WCAB adopted the WCJ’s report and recommendation and denied defendant’s Petition for Reconsideration.
These cases highlight that even in the absence of affirmative evidence to the contrary, assertions the applicant’s employment is seasonal may not be sufficient for a finding of seasonal employment or that there are no “off-season” wages.
Given the nature of seasonal employment for many industries, most notably in agriculture, there is a high turnover from one season to the next. This is true not only for laborers, but also among some management. There also tends to be a minimum of paperwork. This makes proving up seasonal employment more difficult. Identification of an appropriate witness, particularly one who had knowledge of the terms of the applicant’s employment, may be difficult to identify. Pre-injury paperwork may not identify a worker as a seasonal employee.
Early and thorough investigation with the employer, before relevant witnesses move on, is vital in supporting assertions of seasonal employment. It would also be ideal to have documentation at the time of employment that identifies the applicant as a seasonal employee. In an ideal scenario, for workers’ compensation defense purposes, there would also be paperwork reflecting the worker’s termination at the end of each season. These are all not likely to be found in many workers’ compensation scenarios. However, the applicant’s testimony that they were employed on a seasonal basis, and did not have off-season employment, should overcome this lack of documentary evidence or employer witnesses.