As the end of summer rapidly approaches, we can anticipate the joys of fall and winter including raking leaves, chopping firewood and (dare I say it) shoveling snow. These activities provide some an opportunity to earn extra cash. As a homeowner, what happens when you hire Bob the neighbor to rake your leaves and he injures himself while doing so? Is he an employee entitled to workers’ compensation benefits? It is important to know that workers’ compensation benefits are not extended to "casual employees."
When you hire help to provide services unconnected to a business, the helper is a casual employee if the services provided are not regular, periodic or recurring. Casual employment can also be found in the instance where one provides services in relation to a business, but only if the services were provided by chance or pure accident.
In the case of Bob, to determine whether his raking leaves is "casual employment,” we would have to determine whether he has raked his neighbor's leaves in the past and if so, how many times? However, the analysis does not stop there.
The Appellate Division, in Pollard v. Martin, provided additional factors for assessing casual employment. Here, Pollard had hired Martin to paint a summer cottage and sometime later to provide water sealant to a rental property. Martin hurt himself while applying the water sealant. The Judge of Compensation opined Martin was an employee and was not an independent contractor. However, the Appellate Division reversed the decision emphasizing there is a slim difference between casual employment and independent contractor and neither falls within the definition of employee under the Workers’ Compensation Act. Also, the court noted hiring an employee to do a one-time job in relation to a business, does not create employment. In determining whether the employee's work was "irregular," the court placed emphasis on whether the employee was economically dependent. Lastly, the court noted hourly pay, by itself, is not evidence of employment.
As we approach the fall and winter seasons, keep in mind that as a homeowner you do not become an employer simply by hiring Bob to rake your leaves.
By: Ronni Bright