Chin v. Namvar
In the Court of Appeal of the State of California
11 September 2008
B198986 (Los Angeles County Super. Ct. No. BC346309)

Employee or Independent Contractor: What it takes to recover Compensation

In this instant case, the petitioner tries to recover compensation for the damages he sustained in an accident that happened in the work site. But in order to be entitled, he must prove first that he is an employee and not independent contractor.

The antecedent facts of the case reveals that one Kyong T. Chin, the petitioner herein, worked at an Ontario shopping center known as Hollywood 28 performing painting services. During the course of which, he fell off a ladder and suffered injuries.

At the time of the injury, Chin was not a licensed painting contractor. Albeit there are times, prior to the accident, that he was licensed.

Chin lodged a complaint for discrimination with the Department of Fair Employment and Housing alleging that he was fired because of his physical disability and because he protested illegal activity. He was able to obtain a right to sue notice.

And to sue he did. Chin and his wife filed a complaint naming as respondents the partners and/or owners and managers of Hollywood 28. Substantially, he asserts in his complaint the following:

1. He is respondents’ employee at the time he was injured, and was entitled to wages and other compensation owed him


2. As an employee for whom his employer had no workers’ compensation coverage, he was entitled to recover for negligence


3. He was wrongfully terminated

The complaint included a claim by Chin’s wife for loss of consortium.

After a non-jury trial, the trial court entered judgment against the Chins and in favor of respondents. The court ruled that Chin was an independent contractor and not an employee.

On appeal, Chin contended that the trial court erred by ignoring a pertinent provision of the Labor Code which creates a rebuttable presumption than an unlicensed person who performs work requiring a license is an employee, not an independent contractor.

He also assigned as error the trial court’s imposing on him the burden of proving that he was an employee and concluding that he was estopped to assert he was an employee.

Straightforwardly, the Court of Appeal of the State of California affirmed the decision of the trial court against Chin for reasons given below.

Labor Code Section 2750.5 establish “a rebuttable presumption affecting the burden of proof that a worker performing services for which a [contractor’s] license is required … is an employee rather than an independent contractor. Subsections (a), (b) and (c) describe the proof that may be satisfactorily rebut the presumption.”

The penultimate paragraph in Section 2750.5 provides: “In addition to the factors contained in subdivisions (a), (b) and (c), any person performing any function or activity for which a [contractor’s] license is required shall hold a valid contractor’s license as a condition of having independent contractor status.”

The Court said that under the statute, the presumption of employee status can be rebutted only as to persons who hold a valid contractor’s license; the presumption cannot be rebutted as to persons who do not hold a valid contractor’s license.

Also, the Court held that Chin is indeed estopped from asserting that his unlicensed status makes him an employee under the statute due to the fact that he misrepresented himself as licensed contractor. It appears that Chin has a long standing professional relationship with the respondents, the latter knowing and was under the impression that he was licensed.