Rules for employment of household help can be confusing and perplexing. It has not always been clear whether a worker is an employee or independent contractor when it comes to household help. The categorization has great significance should the worker be injured while on the job.

If the worker is an independent contractor, the employer is not liable for the independent contractor’s worker’s injuries merely because the worker was working on the job. If the worker is an employee of the employer, then the employer must have workers’ compensation insurance. If the employer does not have such insurance applicable to the injured employee, then the employer will be presumed negligent and be subject to an action by the worker for special and general damages and statutory penalties – recoveries that are likely excluded from coverage under homeowner’s and general liability insurance policies without an additional rider and premium.

So how does one know if he or she is hiring an employee or an independent contractor to provide household help? There was no hard and fast test to make that determination – until now.

On August 2, 2018, the California Court of Appeals for the Third Appellate District in Jones v. Sorenson decided an unlicensed worker who engages in work for which a license is required, is an employee, not an independent contractor, of the person or entity that hired him or her.

Sorenson had hired a gardener to work on her property. The gardener sent Jones to do the work. Jones was injured when she fell from a ladder while trimming 15-foot tall trees. Jones sued Sorenson claiming Sorenson was liable as a matter of law since tree-trimming required a contractor’s license; she did not have, and the gardener who hired her did not have a license to do the work; and, therefore, Sorenson was the employer of both the gardener, and Jones, and liable to Jones under the doctrine of respondeat superior.

The trial court granted summary judgment in favor of Sorenson. It concluded that the terms “gardener” and “nursery person” as used in Business and Professions Code section 7026.11 were synonymous, and therefore, Sorenson could avoid tort liability because a person acting as a nursery person may trim trees 15 feet tall or higher without a contractor’s license, although a gardener legally cannot do so.

Jones appealed and the Appellate Court reversed. It disagreed with the trial court’s reading of the relevant statute, which distinguishes between a “gardener” and a “nursery person”; the latter referring to a licensed operator of a nursery, whereas a gardener does not require a license.

There was no evidence that the gardener Sorenson hired was also a nursery person. This meant Sorenson had not refuted the claim that she was the gardener’s (and therefore, also Jones’) employer, and potentially liable under a respondeat superior theory for the gardener’s alleged negligence.

The takeaway from Jones is that homeowners can minimize their exposure by hiring qualified licensed contractors to do the work. If the contractors are not licensed, or do not have a license for the work they are asked to perform, the hiring party will be held to be their employer and liable for injuries their workers sustain in the scope and course of performance of the work for which they were hired.

Before you hire someone to perform work on your property it is important to consult with legal counsel to assure the person is properly licensed to perform the work. Also, you should contact your insurer to consider obtaining a coverage rider that protects against claims by domestic employees. Your financial security could depend on it.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.