Court of Appeal Upholds Finding the Gardner is Independent Contractor

In Lara v. Workers' Compensation Appeals Bd. (Second Dist. February 25, 2010) ___ Cal. App. 4th ___, 2010 WL 654379, the Court of Appeal considered whether a gardener, hired twice in the space of 12 months to prune bushes for a diner, was an employee of the diner at the time he sustained injury or an independent contractor exempt from worker's compensation coverage. Slip op. at 1. After reviewing the leading case of S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, the Court upheld the WCAB's determination that the gardener was an independent contractor. The Court considered the following factors: the diner did not possess the right of control over gardener’s activities, gardener performed work as part of his own occupation as a gardener, gardener supplied his own equipment for the job, gardener was not hired on a regular basis, taxes were not taken out of money gardener was paid, neither diner nor gardener were obligated for work in the future, and work was not related to diner’s regular business. The Court had this to say with regard to the primary test, the right of control:

Commencing with the right-of-control criterion, Lara was engaged to produce the result of trimming the bushes. Neither party here presented evidence that Metro Diner had the power to control the manner or means of accomplishing the pruning. Just as in Torres [v. Reardon (1992) 3 Cal.App.4th 831] where we held that the plaintiff, hired by homeowners to prune a tree, was an independent contractor, the means and manner to accomplish the result of pruning here were neither discussed nor were part of the agreement.

Indeed, it is this lack of power by Metro Diner to control the means and manner by which Lara provided the pruning service that puts the facts of this case in stark contrast to the facts in Borello. There, the Supreme Court held that unskilled migrant cucumber harvesters were employees largely because the owner “exercise[d] ‘pervasive control over the operation as a whole [ ]’,” as “‘[a]ll meaningful aspects of this business relationship: price, crop cultivation, fertilization and insect prevention, payment, [and] right to deal with buyers ... are controlled by [Borello].’” (Borello, supra, 48 Cal.3d at p. 356) The migrant harvesters controlled only the decision when to irrigate and harvest, the manner of training the vines, and weeding. The migrants' work was an integral component of the grower's operations, over which the grower exercised pervasive control, and the supposed “independence” of the harvesters from the grower's supervision was not a result of superior skills but was a function of the unskilled nature of the labor, which required little supervision. Here, however, Lara testified that no one told him how to do the pruning and that no one tells him how to do his work. Once he accepts a job, he testified, he did it without direction from the person for whom the service was rendered. Thus, the lack of supervision here was not a function of the unskilled nature of the job. Nor does the fact that Patricia asked Lara to arrive early suggest that Metro Diner controlled any aspect of the pruning. It was Lara who chose both the date and time to perform the service. In short, the principal test of the employment relationship and the very definition of an independent contractor, namely, whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired (§ 3353), supports the Board's finding that Lara was an independent contractor.

Slip op. at 3-4. This decision does not break new ground but is important in light of the number of businesses now classifying workers as independent contractors, rather than employees.