You might have missed it last week, but the world ended. Don't worry if that slipped your notice, everyone else missed it, too. They were instead all consumed with the violent abduction of Lady Gaga's dogs. In case you were in a coma, two of Lady Gaga's French Bulldogs, Koji and Gustav, were brazenly abducted off a California street by two unknown assailants. A third dog, Miss Asia, was left behind by the dognappers. It was a harrowing event for the pop star, who had traveled from locked down California to locked down Italy to film what apparently is an essential movie.
And oh yeah, some dude, the dog walker, was shot.
But the good news is that the dogs have been returned unharmed. A woman being referred to as “unassociated” with the kidnappers found them tied to a pole and turned them into police. Miss Asia, who was left behind by the dognappers for reasons unknown, is now in therapy. It is, after all, California, and she is a celebrity's dog.
But let's have another look at that dog walker.
With everyone being in an uproar over the purloined pooches, it seemed that very little attention was being paid to the man who was injured on the job. He still has not been officially identified, although Ms. Gaga identified him in a tweet, just before announcing a $500,000 reward.
For the safe return of the dogs.
So, since we here at WorkersCompensation.com are all about workers' compensation, we thought it may be a good opportunity to analyze this situation as it pertains to any protections and benefits in place for the purloined pooch protector. He has, after all, sustained a serious injury and will no doubt be facing very large medical bills, in addition to his loss of income. Was he covered under workers' compensation? Or was he, despite recent reforms in the state still considered an independent contractor? If an employee, was he exempt from workers' comp?
California still has numerous areas where exemptions apply. For example, an employer can be exempt if they are “Any person while acting solely as the sponsor of a bowling team.” Glad we got that one on the books. For employees, however, most exemptions seem to relate to amateur sports, volunteering, and certain religious, charitable, and non-profit activities. Under state law, if the dogwalker was an employee, he would not be exempt from workers' compensation.
Could the walker be determined to be a domestic worker? The state does specifically classify them as employees, requiring coverage for “Any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant.”
And this may be a shock to Lady Gaga and millions of pet owners such as myself, but legally those dogs aren't children. He might not have been required to be classified as an employee. Despite the passage of AB 5 last year that seriously restricted the classification of independent contractors, they do still exist in the state. So, let's look at the independent contractor ABC test codified by AB 5. Under the ABC test, a worker is considered an employee and not an independent contractor, unless the hiring entity satisfies all three of the following conditions:
The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
The worker performs work that is outside the usual course of the hiring entity's business; and
The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
To the first point, it is unlikely Ms. Gaga directed the specific times and path of said dog walking activities. She was, after all, doing essential work in Italy, and probably just didn't want to find her foyer soiled upon her return.
To the second point, it is a slam dunk. We know for a fact that Lady Gaga is not in the business of walking her dogs.
And to the final point in the ABC test, sources close to the dog walker tell us that this is indeed his profession and that he is apparently quite good at what he does.
Bingo, bammo, boom. He could indeed be the one person in California that still qualifies as an independent contractor. Which of course means that he has all the benefits and protections not afforded that position. Maybe the lady who returned the dogs can pay his medical bills after she collects that $500,000 reward.
Of course, we could question the validity of a reward offered via an emotional tweet, but that is a topic for another day.
There are subtleties and nuances that we are not party to that could alter our prospective outcome. He might have been following very specific walking instructions that would not allow him to be considered an independent contractor. He may very well have been a regular employee and have coverage. Or someone who is benevolent and wealthy may decide to voluntarily cover an injured worker's expenses when they return from essential acting in a foreign land. Or the essential performer could be sued for damages. We simply do not know at this point.
But we do know that a person was severely injured while performing their job and that this point was missed by many while they were busy going gaga over some lady's dogs.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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