Spring has sprung. Maybe. Cautiously optimistic here. Fingers crossed that a surprise spring storm does not bring feet of Sierra Cement to the region. Good for the water situation, no doubt. But for the school children, the lower backs, and the roofs … oh the roofs, please, no more.
The rooftop snow shoveler may disagree though. So long as that shoveler is being paid, that is. Small fortunes were to be had if one was willing to literally risk life and limb to climb on snow and ice covered, avalanche ready roofs. But what of the shoveler who falls from the roof and gets injured? Can the homeowner be held monetarily responsible for the injuries?
Well, to the chagrin of the injured shoveler, and to the relief of the homeowner, the pursuit of monetary recovery from the homeowner will prove difficult. Barring a few exceptions, the shoveler’s claim against the homeowner for liability or for workers’ compensation coverage is dependent upon establishing the shoveler as an “employee” of the homeowner. If the shoveler is determined to be an “independent contractor,” the doors of potential recovery all but close.
In general, California law strongly favors treating workers as employees, as opposed to independent contractors, in order to afford workers the litany of benefits and protections bestowed to employees under the California Labor Code.
In fact, workers are presumed to be employees unless: (A) the worker is free from the control and direction of the hirer in performing the work; (B) the worker performs work that is outside the usual course of the hirer’s business; and (C) the worker is customarily engaged in an independently established trade of the same nature as the work being performed for the hirer (Lab. Code § 2750.3(a)(1)(A-C).) But where the three criteria are met, the worker is deemed an independent contractor.
Apply the so-called ABC test to the typical residential roof snow shoveler, and the result is usually an independent contractor. The owner of the residence is not directing the shoveling and is not up on the roof with the shoveler. The homeowner’s usual course of business is not snow shoveling or roof maintenance. And the shoveler is shoveling at numerous residences performing services customary of the snow removal trade.
Being characterized as an independent contractor is bad for the injured shoveler, but good for the homeowner. In Privette v. Superior Court, the California Supreme Court held that hirers of independent contractors are essentially insulated from claims of liability arising from personal injury or wrongful death brought by independent contractors or their employees against a hirer.
The general theory being that the hirer is delegating all work responsibility to the independent
contractor, so the hirer shouldn’t be liable when something goes wrong. There are limited exceptions to the so-called Privette Doctrine that recognize liability of a hirer to an independent contractor where (1) the hirer retains control of the work and contributes to the injury, (2) where the hirer fails to warn the independent contractor of concealed dangerous conditions, or (3) where the hirer provides unsafe equipment to the independent contractor. But again, these exceptions are not commonly applicable where the homeowner merely points at the roof and says to the shoveler, “please get the snow off.”
Now if the shoveler or crew conducts roof repair in addition to removing snow, a roofing contractors license from the California Contractors State License Board may be required. If so, and if the shoveler or service does not have the requisite license, the shoveler will be deemed an employee of the homeowner pursuant to Labor Code section 2750.5. In this instance, the injured shoveler may pursue liability claims against the homeowner and is not barred by the Privette Doctrine. This is a major risk homeowner assume by hiring any unlicensed contractor, not just a snow shoveling service.
But a contractor’s license is not required for mere snow removal, so again, in the typical rooftop removal scenario, the employment status of the shoveler to the homeowner will commonly be that of an independent contractor.
Even then, it may be possible for the injured shoveler to make a claim against the homeowner’s insurance policy. California Insurance Code section 11590 requires all homeowner insurance policies to contain workers’ compensation coverage for household employees injured during the course of employment by the homeowner.
A household “employee” is any person employed by a homeowner for duties incidental to “ownership, maintenance, or use of the dwelling.” (Lab. Code § 3351(d).) This would seemingly include the snow shoveler, but Labor Code section 3352(a)(8) excludes from the definition of “employee” – for the purposes of workers’ compensation coverage – any worker who has worked for the homeowner less than 52 hours in a 90-day period prior to the day of injury, or who has earned less than $100.
For the typical roof shoveling worker, one residential roof snow clearing job will not take longer than 52 hours, so it is unlikely the injured shoveler will be able to obtain worker’s compensation proceeds from the homeowner’s insurance policy.
With little chance of recovering from the homeowner – via workers’ compensation coverage or a liability claim – the injured rooftop shoveler is left with little recourse. As most rooftop shoveling services are just ad hoc groups hastily created to meet demand, the chance such services carry their own workers’ insurance is slim. If that’s the case, the injured shoveler is out of luck and hopefully has medical insurance.
There is a reason most homeowners aren’t up on their own roofs shoveling snow – it is dangerous and hard work. Given the risks of the profession and lack of a safety net, it is no wonder rooftop shovelers charge so much. For shovelers and homeowners alike, let’s hope this winter is behind us.
Ravn R. Whitington is a partner at Porter Simon licensed in California and Nevada. Ravn
is a member of the firm’s Trial Practice Group where he focuses on all aspects of civil litigation.
He has a diverse background in trial practice ranging from personal injury to complex business
disputes to construction law, and to all matters in between. He may be reached at
[email protected] or http://www.portersimon.com.