California has one of the most diverse workforces in the country. Each distinct job industry has its own nuances within the Workers’ Compensation system. One often overlooked but invaluable part of California’s workforce is its seasonal workers. Whether working a harvest season for California’s bountiful produce, at a ski resort or summer destination, or working over the holidays for retailers like Amazon or Target, seasonal workers are an integral resource for employers in California.
As with many other jobs, special laws have been carved out for administering benefits for seasonal workers, and special care must be taken by defense practitioners to ensure that their clients know the different ways in which these claims are handled.
What is a Seasonal Worker?
A “seasonal worker” is a worker who typically is only employed for a specified period of time in a given year. Jimenez v. San Joaquin Valley Labor (2002) 67 CCC 74 (Jimenez), defined seasonal workers as those “who work reasonably identifiable and defined seasons of reasonably identifiable duration.” The court in Jimenez distinguished between seasonal workers and “intermittent” or “piecemeal” workers who work a limited duration “but…[have] worked (and/or likely will work) periodically throughout the year.” (Jimenez, supra, 79). These employment periods are usually centered around “seasons;” whether a harvest season or a holiday season, the length of the employment is typically defined and varies based on the employer need. For example, produce harvesting operations must employ a large seasonal workforce during the annual harvest. Similarly, many retail stores and warehouses employ a seasonal workforce before and during the busy Christmas holiday.
It is ultimately up to the appeals board to determine whether an injured worker is a seasonal employee versus a year-round employee. This will be a fact-specific analysis that may require employer witness testimony and possible contractual documentation. It is therefore prudent to gather evidence early on in a claim to bolster the argument that an injured worker should be classified as a seasonal employee.
Are Seasonal Workers Eligible for Workers’ Compensation?
In short, yes; seasonal workers are treated the same as every other employee when it comes to Workers’ Compensation benefit entitlement. However, temporary disability and permanent disability benefits calculations require special considerations.
It is important to identify which party has coverage of the seasonal employee. Was the employee hired from a placement agency as a temporary employee, or were they hired directly by the employer? The answer to this question could determine which carrier, or both, is liable for the injury. Without delving too deeply into the “general vs. special” employment relationship, the issues posed by that relationship must be taken into consideration when dealing with seasonal or temporary employees.
How Are Temporary Disability Benefits Calculated?
Calculating a seasonal worker’s average weekly wage to determine the temporary disability rate can be complex.
Typically, an injured workers’ average weekly wage is calculated by considering their earnings in the 52-week period preceding the injury. However, for a seasonal worker, this may not be the most accurate way to calculate average weekly wage, primarily because the wages from the employer may not encompass a full year, and also because the wages could include other employers in the off-season.
Temporary disability is meant to replace the wages the applicant would have received but for the injury. In Jimenez, the court considered that an employee may have an in season temporary disability rate, and an out of season temporary disability rate. Meaning, if the employee can present evidence that but for the injury they would have an expectation of wages outside of the season, they are entitled to a different TTD rate during the off-season for the wages lost due to the injury.
As such, a seasonal employee’s gross wages for the 52 weeks preceding the injury must be divided only by the actual number of weeks worked, provided that this is indicative of the applicant’s expected on-season earnings. Remember that Labor Code sections controlling temporary disability rate calculation are construed liberally, and the WCAB is given broad latitude to determine the TD rate that is predictive of “what the employee’s earnings would have been during his or her period(s) of temporary disability, but for the industrial injury.” (Jimenez, supra at 77).
Importantly, the court in Signature Fruit Co. v. WCAB (Ochoa) held that seasonal workers are not entitled to temporary disability “during [their] off-season where the parties stipulated…[there were no] off-season earnings.” The court in Ochoa held it would be “illogical to award an employee temporary disability as a wage replacement where it is undisputed that there otherwise would not be a wage to replace.” (Ochoa, supra, 802) As such, seasonal workers are not entitled to temporary disability when their season of employment ends, provided there is no evidence of off-season earnings.
How are Permanent Disability Benefits Calculated?
In contrast to temporary disability, permanent disability is meant to compensate an injured worker for loss of earning capacity (not lost wages). Typically, a worker injured after January 1, 2013, is entitled to a maximum of $290 per week up to a dollar amount specific to the percentage of permanent disability suffered. However, where an injured workers’ temporary disability rate is lower than the statutory maximum of permanent disability, the injured workers’ permanent disability rate will be the same as their temporary disability rate, not to fall below the statutory minimum rate of $160 per week. How does this affect seasonal workers?
Given that permanent disability is meant to approximate the loss of earning capacity, it is not only payable to an employee during their employment season; it is paid to the employee year-round. As a result, a seasonal employee’s permanent disability rate must be calculated based on a standard 52 weeks, and not just the weeks the employee would have an expectation of wages. To calculate the year-round rate, the employee’s earnings in a given season must be divided by 52 weeks, and then multiplied by two thirds to arrive at the year-round rate. This often results in a permanent disability rate below $290, and sometimes below the statutory minimum of $160. As such, seasonal workers without sufficient earnings in-season to support the statutory maximum rate will earn a PD rate of $160 per week. As can be imagined, this significantly lowers the potential permanent disability value of cases involving seasonal workers.
Issues with EDD?
Lastly, seasonal workers who do not have off-season employment, will sometimes obtain benefits through EDD during the off-season instead. As the employer is no longer offering wages, and temporary disability benefits are not owed, the worker is entitled to obtain these benefits without issue or overlap. However, problems can arise which lead to overlapping payment obligations when permanent disability benefits are due. In some cases, adjusters will issue payment to the applicant for retroactive permanent disability, without checking first to determine if EDD paid the injured worker for the same period. Ideally, EDD should be paid from applicant’s permanent disability proceeds first—at the injured workers’ reduced permanent disability rate—with the balance being paid to the applicant. This ensures that the carrier does not end up paying permanent disability “in the face” of an EDD lien, and being ordered to pay EDD in addition to the applicant for the same period.
Before issuing permanent disability advances to a seasonal worker for a retroactive period, it is imperative to check with local EDD representatives to ensure there is no overlapping payment obligation. Often times, EDD payments can eclipse an award of permanent disability benefits, leaving nothing to be paid to the injured worker, so resolving EDD first will prevent the unfortunate duplication of payment.
Overall, seasonal workers’ injury claims are handled much the same as any other worker’s, but consideration of the special issues described above will ensure that seasonal injured workers are provided the benefits they are entitled to both on and off season without the risk of delay or penalty.
