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JUDICIAL UPDATES Unlicensed Roofer Was Employee for Purposes of Tort Liability In Mendoza v. Brodeur (Court of Appeal Case No. A109303), the Court of Appeal determined that an unlicensed roofer was allowed to proceed with his personal injury lawsuit against the person that hired him. The roofer was injured during the course of the work at the defendant’s home. The roofer sued the homeowner in civil court, claiming that he was an employee of the homeowner, that he was injured during that employment, and that he could sue the homeowner civilly because the homeowner allegedly did not have workers’ compensation insurance. The homeowner defended on the basis of Labor Code section 3352(h), which excludes from the definition of an employee a person who was employed less than 52 hours in the 90 calendar days before the injury. However, the Court of Appeal agreed with the roofer’s argument that, under Labor Code section 2750.5 (which is not part of the workers’ compensation statutes), he was in fact an employee of the homeowner. That section creates a presumption that a worker performing services for which a license is required is an employee and not an independent contractor. It makes a valid license a condition of independent contractor status, and California law has been interpreted to provide that a person lacking the requisite license may not be an independent contractor. The presumption is that the person who employs the unlicensed contractor is the employer of the contractor. Because the workers’ compensation exclusivity doctrine did not kick in to bar the claim, the roofer was allowed to proceed with his lawsuit against the homeowner. NEXT: California Unruh Civil Rights Act and Disabled Persons Act Do Not Provide for Disability Discrimination Claim Based on ADA
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