The 2nd District Court of Appeal issued a published decision on Tuesday concluding that The Salvation Army is not the employer of a man who was ordered to enlist in a residential drug rehabilitation program as part of his probation.
The 2nd DCA issued its decision in Velasquez v. WCAB, which addressed the question of whether Velasquez qualified as an employee of the Salvation Army. The Law Offices of Bradford & Barthel represented the Salvation Army in the case, and appellate specialist Louis Larres represented the Salvation Army at the appellate level.
The case featured detailed questions stemming from facts related to Jose Velazquez’s probationary status. Here is a brief summary of the case.
FACTUAL BACKGROUND
Velasquez had been an inmate at the Santa Barbara County jail but was placed on probation. As part of his probation, Velasquez was ordered to enlist in and complete a residential drug rehabilitation program.
He was then referred to the Salvation Army’s residential drug rehabilitation program in Santa Monica where he was subsequently injured while working in a warehouse. Velasquez alleged he was an employee of either the Salvation Army, the County of Santa Barbara, or both.
PROCEDURAL HISTORY
At trial on the matter, the WCJ found that Labor Code section 3301(b) applied and that neither the Salvation Army nor the County could be found to be an employer. Velasquez filed a petition for reconsideration and the WCAB, in a panel decision, upheld the trial decision. Velasquez then filed a petition for writ of review.
AT THE APPELLATE COURT
At the 2nd District Court of Appeal, Velasquez primarily contended that he was an employee of the Salvation Army because at the time of his injury, he was working in excess of 40 hours a week at certain points during his stay. Thus, he claimed, the Salvation Army was not acting solely as his sponsor as is required by Labor Code section 3301(b). He also argued his probation agreement did not include a specific reference to community service and thus, because community service was not specifically a condition of his sentencing, section 3301(b) did not apply to the Salvation Army.
The Court of Appeal upheld the decision as to the Salvation Army, but remanded for further development of the record as to the County’s role as an employer. Key to reaching its decision, the appellate court considered Velasquez’s obligation to enroll and participate in good faith in all aspects of the drug rehabilitation program.
An important part of that rehabilitation (not just from substance abuse but to rehabilitate himself to be a self-sufficient and productive member of society), included work-therapy. Thus, in order to complete the condition of sentencing, Velasquez had to engage in that work-therapy.
The Court also considered the broader societal implications behind the Legislature’s reasoning in enacting such an exclusion.
Charitable organizations, such as the Salvation Army, that provide these kinds of community services perform a valuable service to society and help relieve the burden on state and local governments in doing so. Imposing workers’ compensation liability on such organizations would likely disincentivize them from providing these invaluable services to the communities in which they operate.
DISSENTING OPINION
There was a dissenting opinion from one justice who disagreed with the majority. That justice stated that he would have found the lack of any specific reference to community service in the sentencing order sufficient to exclude the application of section 3301(b) to the Salvation Army.
To read the decision, click here.
Got a question about workers’ compensation defense issues? Feel free to contact Louis A. Larres. Louis Larres is a partner and area managing attorney at Bradford and Barthel’s Fresno office, and the director of the firm’s Appellate Division. Please feel free to contact Louis at llarres@bradfordbarthel.com or at (559) 221-6500.
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