eNotes: Workers’ Compensation – September 2024 – Washington, DC

SIGNIFICANT CASE SUMMARIES

Washington, DC Case Summary

Lopez v. D.C. Dep’t of Emp. Servs.
D.C. Court of Appeals
No. 22-AA-0765
Decided: August 8, 2024

DCA holds that day laborer is not a casual employee

Background

The Claimant, a day laborer, was injured while working for the Employer when he fell from a ladder. The Employer is primarily a painting company, but occasionally completes demolition work for a general contractor. The Employer had a crew of regular 1099 employees for the painting work but would engage day laborers for demolition work as needed to work on a day to day or week to week basis. The Claimant was hired to do demolition work for a project that was to last two to six weeks. The Claimant had previously worked for the Employer for 7 weeks during year of injury. He was also told there was another upcoming demolition project for which he might be hired. When the Claimant worked for the Employer, he was provided with tools, instruction, and a schedule. The Claimant acknowledged that whenever he was not doing work for the Employer, he would go to the plaza and wait to see if someone else would come by and offer him work for the day and was free to accept or reject demolition jobs offered by the Employer. The Act bars compensability for injuries sustained by an employee engaged in employment that is casual and not in the usual course of trade, business, occupation, or profession of the Employer. D.C. Code §32-1501(9)(E). The Court agreed that the appropriate test in DC is the “relative nature of the work test” (vs. the “right to control test”) under which an employment relationship is found when (1) the worker, relative to the employer, does not furnish an independent business or professional service (evaluation of the Claimant’s work or business, addressing the degree of skill involved, the degree to which it is a separate calling or business, and the extent to which it can be expected to carry its own accident burden); and (2) the work being done is an integral part of the regular business of the employer (focuses on to what extent the Claimant’s work is a regular part of the employer’s regular work, whether it is continuous or intermittent, and whether its duration is sufficient to amount to the hiring of continuing services vs. contracting for the completion of a particular job). The Claimant appealed from ALJ/CRB’s holding that he was barred from recovery as a casual employee.

Holding

Applying both parts of the “relative nature of the work test”, the DCA reversed, holding that (1) the facts supported that demolition was a regular part of the Employer’s business; (2) the Claimant’s work was unskilled labor; and (3) although intermittent, the Claimant’s employment over 6 months usually involved projects that spanned more than a few hours or days, establishing a reasonable probability of regular recurrence or continuance for a substantial period.

Takeaway

The casual employment defense will not be viable in case of day laborer where there is reasonable probability of regular recurrence or continuance of employment for a substantial period.

Questions regarding this case can be addressed to Jamie L. DeSisto at (443)641-0558 or jdesisto@tthlaw.com.