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Aaron Brown became an inmate at Los Angeles County jail on approximately February 16, 2018. On March 8, 2018 he transferred to “wayside” facility. One week later, he signed an agreement to participate in the conservation work program, which provided “work time” credits of 1 ½ days for every one day of work in the program.

On March 22, 2018, Brown slipped and fell while walking to the coffee pot at the print shop where he participated in the conservation work program. He reported the injury immediately and was examined at urgent care. He returned to urgent care the next evening due to hip pain. Hours later, he was released on the early release program.

Los Angeles County denied his claim for workers’ compensation benefits claiming there was a lack of and employment relationship.

After conclusion of a trial, the WCJ found that Brown was not an employee for purposes of workers’ compensation benefits. The WCJ relied upon an ordinance passed in 1970 that states that county inmates may be forced to labor and that such county inmates shall not be considered an employee for the purposes of workmen’s compensation insurance. Also submitted into the record is the Inmate Worker Agreement.

Brown’s petition for reconsideration was granted, and the WCAB panel concluded that he was an employee at the time in the case of Brown v County of Los Angeles/Sheriff’s Department – ADJ11278318 (December 2022).

Labor Code section 3351 defines “employee,” and section 3357 provides that “Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.” This is a rebuttable presumption.

Penal Code section 4017 provides that county inmates working in the suppression of fire are considered employees of the county. It does not speak as to the employee status of county inmates who do not work in fire suppression. The employee status of county inmates are thus left to the courts to decide.

In making this determination, courts have looked at whether the work that the inmate performed was “voluntary” or “compulsory” as an incident to incarceration and whether there was consideration for the work performed. If an inmate was performing compulsory work as an incident to penal servitude, he is not an employee and has no rights to workers’ compensation benefits. (Parsons v. Workers’ Comp. Appeals Bd. (1981) 126 Cal.App.3d 629 [46 Cal.Comp.Cases 1304].)

In deciding whether an inmate was performing compulsory or voluntary work, trial courts may ask the following questions (the Rowland factors): (1) Did the county require the worker to work as a condition of incarceration? (2) Did the inmate worker volunteer for the assignment? and (3) What consideration were received, if any; for example, monetary compensation, work-time credits, freedom from incarceration, etc. (Rowland v. County of Sonoma (1990) 220 Cal.App.3d 331, 333-334.).

There is a difference in determining employee status between persons incarcerated in state prison and person incarcerated in county jail. State inmates are statutorily included in the definition of “employee” while county inmates are subjected to a compulsory test to determine their employee status.

In more recent laws, employer control is a major factor in determining employment status (the more employer control, the more likely employment status is found, whereas here, the opposite effect results when applying the compulsory test, in that the more control the county exercises, the more likely the inmate’s work is found to be compulsory without the protections of an employment relationship.

The language in a local ordinance with respect to assigning work to inmates is not determinative, although it may be considered in determining whether the inmate’s work is compulsory or voluntary.

In applying the compulsory test above using the Rowland factors, the WCAB panel concluded that applicant’s work at the time was voluntary. Accordingly, it concluded that applicant is an employee of the county and entitled to workers’ compensation benefits.