Service Employees International Union v. County of Los Angeles

225 Cal. App. 3d 761, 275 Cal. Rptr. 508, 90 Cal. Daily Op. Serv. 8647, 90 Daily Journal DAR 13568, 1990 Cal. App. LEXIS 1234

• Court: California Court of Appeal
• Decided: November 27, 1990
• Docket: B040811
• Status: Published

Opinions

Opinion

LILLIE, P. J.

Plaintiff, Service Employees International Union, Local 434, appeals from judgment denying plaintiff’s petition for a writ of mandate which would have ordered defendant County of Los Angeles to meet and confer with plaintiff as the representative of a group of workers alleged to be employees of the county.

Factual and Procedural Background

The complaint alleged: Plaintiff is in the process of organizing home care workers who provide services to public aid recipients under the In-Home Supportive Services (IHSS) program (Welf. & Inst. Code, § 12300 et seq.). Over 12,000 home care workers, who have no recognized union representation, have authorized plaintiff to represent them in negotiations with the county. Plaintiff contends the home care workers are employees of the county for purposes of the Meyers-Milias-Brown Act (MMBA) (Gov. Code, § 3500 et seq.), which obligates local government employers to bargain with the representatives of their employees about wages, hours, and other terms and conditions of employment. The county denies that the home care workers are its employees. The complaint sought a determination that the home care workers are employees of the county for purposes of the MMBA and a peremptory writ of mandate ordering the county to meet and confer with plaintiff as the authorized representative of the home care workers.

The following statement of facts is based on the trial court’s statement of decision.

The purpose of the IHSS program is to reduce the cost of care for the aged, blind or disabled by providing care for them in their homes. The program was originated, and is largely funded, by the federal government. A state may participate in the program by paying a portion of the funding and complying with federal requirements. California participates in the IHSS program pursuant to Welfare and Institutions Code section 12300 et seq. The county administers the program locally on behalf of the state in accordance with the statute and state regulations establishing a uniform range of services available to all eligible recipients.¹ (Welf. & Inst. Code, §§ 12301, 12301.1, 12302.) County social workers interview applicants for IHSS services and determine their eligibility and need for such services² and the number of hours of service to which the applicant is entitled under the regulations. (Reg. 30-761.) The county forwards the recipient’s application to the state. If the state determines the applicant is eligible for the services the state sends a notice of action to the recipient setting forth a description of each specific service authorized and the number of hours allotted to each. (Welf. & Inst. Code, § 12300.2.)

A county may deliver services under the IHSS program by (1) hiring in-home supportive personnel in accordance with established county civil services requirements, (2) contracting with a city, county, city or county agency, a local health district, a voluntary nonprofit agency, a proprietary agency or an individual, or (3) making direct payment to a recipient for the purchase of services. (Welf. & Inst. Code, § 12302.) Defendant county chose the third alternative. Under that procedure the county may not compel the recipient to employ a specific individual (provider) to provide the authorized services. (Reg. 30-767.2.)

Where a recipient is unable to obtain a provider the county is required to make a reasonable effort to help the recipient find one. (Reg. 30-767.132.) To this end the county has set up a registry wherein prospective providers may list their names. Any person may become a provider. There are currently 50,000 providers in the county and there is no limit to the number of persons who may become providers in the IHSS program. The county does not screen or qualify prospective providers. If a recipient needs assistance in locating a provider the county social worker gives the recipient the names of three prospective providers from the registry. The recipient then contacts and interviews those persons and determines whether one of them is suitable and will be employed. On the other side of the coin, a provider is free to select a recipient for whom he or she is willing to work.

To obtain payment for the provider’s services the recipient and the provider must sign and certify a time sheet showing the number of hours of provider assistance rendered during the preceding month. The recipient mails the time sheet to the county where it is checked for completeness and then entered into a computer payroll system installed and operated under contract with the state. Payment for the provider’s services is made by the state and mailed to the recipient or the provider.

The trial court found: The county exercises no supervisory control over providers. The manner in which the provider’s tasks are performed is determined by the recipient, as are the hours when such services are performed. The provider is free to terminate his or her services without notice to the county; likewise, a recipient may discharge a provider at any time without notice to the county. If a provider is not performing satisfactorily the county has no right to intervene. Where the recipient’s health or safety is endangered by such unsatisfactory performance, the county’s only recourse is to place the recipient in an appropriate facility. The county has no authority to adjudicate a dispute between recipient and client regarding services. For purposes of the method of delivering IHSS services chosen by the county, employer is defined as the recipient and employee is defined as the provider. (Reg. 30-753, subds. (i), (j).) As the employer, a recipient has responsibilities for work scheduling and working conditions. (Reg. 30-764.31.) Over 50 percent of recipients have friends or family members serving as providers. The decision regarding which provider to employ is solely that of the recipient. The county social worker makes no recommendation as to any particular provider even where the county, in carrying out its duty to assist the recipient, gives the recipient the names of three prospective providers from the registry.

The county has no authority to screen providers, control who will be a provider, control the number of providers (which is unlimited), or regulate their hours of work, vacations, hiring or termination. While the county is required to fix the providers’ compensation at not less than the minimum wage, the compensation is paid from the state treasury, with the state assuming responsibility for various deductions for insurance and other benefits. Further, there is no credible evidence that the county ever considered itself an employer of the providers. On the contrary, its actions are consistent with its position that the providers are not employees of the county under the MMBA or in any other context.

Judgment was entered denying plaintiff’s petition for writ of mandate and declaring that IHSS providers under the independent provider mode of delivery of service are not employees of the county within the meaning of the MMBA.

Plaintiff appeals from the judgment.

Discussion

I

While plaintiff does not expressly so argue, it implies that the trial court—and inferentially this court as well—was bound by decisions of the federal Circuit Court of Appeals and the California Court of Appeal, cited below, which determined that home care providers in California’s IHSS program are employees of the state or the state and county.

In Bonnette v. California Health and Welfare Agency (9th Cir. 1983) 704 F.2d 1465, it was held that under the Fair Labor Standards Act (FLSA) (29 U.S.C. § 201 et seq.) welfare agencies of the State of California and three of its counties were employers of in-home care providers whose services, as in the present case, were purchased by recipients of the services with money provided by the state; accordingly, the providers were entitled to the federal minimum wage. After noting that the definition of “employer” in the FLSA must be given an expansive interpretation in order to effectuate the statute’s broad remedial purposes, including payment of the federal minimum wage (Bonnette, supra, 704 F.2d at p. 1469), the court stated: “We conclude that, under the FLSA’s liberal definition of ‘employer,’ the appellants were employers of the chore workers. The appellants exercised considerable control over the nature and structure of the employment relationship. They also had complete economic control over the relationship. The ‘economic reality’ was that the appellants employed the chore workers to perform social services for the benefit of the recipients. The fact that the appellants delegated to the recipients various responsibilities does not alter this; it merely makes them joint employers.” (Id., at p. 1470.)

The other case upon which plaintiffs rely is In-Home Supportive Services v. Workers’ Comp. Appeals Bd. (1984) 152 Cal.App.3d 720 [199 Cal.Rptr. ], a decision of the Third District, wherein it was held that for purposes of the workers’ compensation law (Lab. Code, § 3200 et seq.) an IHSS provider is employed by the state as well as the recipient and therefore is eligible for benefits for an injury sustained in the course and scope of employment. Said the court: “This scheme of engagement of individuals by the state, through its agents, to perform IHSS services for recipients required by state regulations establishes an employment relationship. The individual must do the chores listed in the county assessment of need. Payment for these services is provided by the state. The county, under the regulatory scheme, has the right to sufficient control over the IHSS provider to make the state chargeable, by virtue of the agency relationship with the state, as an employer.” (In-Home Supportive Services, supra, 152 Cal.App.3d at p. 731, original italics, fn. omitted.)

The foregoing cases are of doubtful application in the present action, inasmuch as they determined that an IHSS provider is an employee of the state, or the county and the state, for purposes other than the MMBA. In any event California courts are not bound by the decisions of lower federal courts even on federal questions. (People v. Neer (1986) 177 Cal.App.3d 991, 1000 [223 Cal.Rptr. 555].) The trial court refused to follow the Bonnette case because its conclusion was based on a broad interpretation of the term “employee” for purposes of the FSLA. As to the In-Home Supportive Services case, the court correctly noted that it was not in point since it held that for purposes of workers’ compensation coverage IHSS providers are employees of the state. While In-Home indicated that the county, as agent of the state, has the right to exercise control over IHSS providers, we are not bound by that decision (see Nissan Motor Corp. v. Superior Court (1989) 212 Cal.App.3d 980, 982 [261 Cal.Rptr. 80]) and decline to follow it, inasmuch as the trial court’s contrary finding is supported by the record.

Plaintiff also brought to the trial court’s attention an opinion of the California Attorney General which concluded that for purposes of collective bargaining IHSS providers may be considered county employees. (68 Ops.Cal.Atty.Gen. 194, 199-200 (1985).) “The counties control the rate and method of payment, determine the amount and nature of the services required by the recipient, and are significantly involved in supervising the worker’s job performance.” (Id., at p. 199.) The opinions of the California Attorney General are advisory only and do not carry the weight of law. (People v. Vallerga (1977) 67 Cal.App.3d 847, 870 [136 Cal.Rptr. 429].) The trial court disagreed with the Attorney General’s opinion cited above and determined that the county exercised no control over providers either directly or indirectly.

II

The MMBA defines “public employee” as “any person employed by any public agency.” (Gov. Code, § 3501, subd. (d).) This definition is not helpful in determining whether IHSS providers are employees of the county. Accordingly, we must look elsewhere for guidance.

“An employee is an individual who performs services subject to the right of the employer to control both what shall be done and how it shall be done and an employer is a person for whom an individual performs services as an employee.” (Weisman v. Blue Shield of California (1984) 163 Cal.App.3d 61, 68 [209 Cal.Rptr. 169].) “The essential characteristic of employment relationship is the right to control and direct the activities of the person rendering service, or the manner and method in which the work is performed.” (Villanazul v. City of Los Angeles (1951) 37 Cal.2d 718, 721 [235 P.2d 16].) In Service Employees Internat. Union v. Superior Court (1982) 137 Cal.App.3d 320 [187 Cal.Rptr. 9], the court listed four additional factors pertinent in determining the existence of an employer-employee relationship for purposes of the MMBA: (1) The power to discharge the person claimed to be an employee; (2) the payment of salary; (3) the nature of the services; and (4) the parties’ belief as to the existence of an employment relationship. (Id., at pp. 325-326.)

A trial was had at which evidence was presented by both parties on the employment issue. In its statement of decision the trial court found that each of the elements listed above pointed to the lack of an employer-employee relationship between defendant county and the IHSS providers. Plaintiff attacks the finding that the county exercises no control over the manner in which the providers perform their duties.

The reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [92 Cal.Rptr. 162, 479 P.2d 362].) Where an appellant challenges the sufficiency of the evidence, his burden is a heavy one; he must show that there is no substantial evidence whatsoever to support the findings of the trier of fact. (Kimble v. Board of Education (1987) 192 Cal.App.3d 1423, 1427 [238 Cal.Rptr. 160].) Plaintiff fails to carry that burden. It asks in essence that we reweigh the evidence and choose the inferences to be drawn therefrom. This we cannot do. (Estate of Gerber (1977) 73 Cal.App.3d 96, 112-113 [140 Cal.Rptr. 577]; Roland v. Hubenka (1970) 12 Cal.App.3d 215, 220 [90 Cal.Rptr. 490].) “The trier of fact is the sole arbiter of all conflicts in the evidence, conflicting interpretations thereof, and conflicting inferences which reasonably may be drawn therefrom; is the sole judge of the credibility of the witnesses; may disbelieve them even though they are uncontradicted if there is any rational ground for doing so ... ; and, in the exercise of a sound legal discretion, may draw or refuse to draw inferences reasonably deducible from the evidence.” (Horn v. Oh (1983) 147 Cal.App.3d 1094, 1099 [195 Cal.Rptr. 720].)

According to the dissenting opinion, whether IHSS providers are county employees should be determined within the meaning of the MMBA. The dissent faults us for not giving due consideration to the purpose of the MMBA and for refusing to follow Bonnette v. California Health & Welfare Agency, supra, 704 F.2d 1465, which broadly interpreted the term “employer” in the Fair Labor Standards Act to apply to a county’s relationship with IHSS providers. These criticisms are not well taken.

Regardless of the purpose of the MMBA—in brief, “to promote full communication between public employers and their employees” (Gov. Code, § 3500)—the statute does not apply where there is no employment relationship. As we pointed out, the MMBA definition of employee—“any person employed by any public agency” (Gov. Code, § 3501)—is of no help in determining the existence of an employment relationship. The dissent attacks our reliance on common law definitions of that relationship. In so doing it ignores Service Employees Internat. Union v. Superior Court, supra, 137 Cal.App.3d 320, wherein the following factors are listed as pertinent in determining the existence of an employer-employee relationship for purposes of the MMBA: right to control and direct the activities of the person rendering service; power to discharge that person; payment of salary; nature of services; and parties’ belief as to the employment relationship. (Id., at pp. 325-326.) Further, contrary to the position taken by the dissent the applicability of the MMBA cannot be ascertained in a vacuum. The regulations must be consulted to determine whether the IHSS providers are employees of defendant county. For purposes of the method of delivering IHSS services chosen by the county, the regulations define employer as the recipient and employee as the provider. (Reg. 30-753, subds. (i), (j).)³

In the Bonnette case, the court determined that the State of California and three of its counties were employers of IHSS care providers because those entities “exercised considerable control over the nature and structure of the employment relationship.” (704 F.2d at p. 1470.) In the present case the trial court, on conflicting evidence, found that defendant county exercises no such control. Accordingly, the Bonnette case is not persuasive authority for interpreting the term “employee” in the MMBA to include IHSS providers.

Ill

Taking a different tack, plaintiff argues that the regulations govern the relationship between the county and the IHSS providers. Accordingly, the evidence presented at trial was irrelevant and we are not required to defer to the findings of the trial court. We do not agree.

Plaintiff argued below, as it does here, that the regulations are determinative of the question whether the IHSS providers are employees of the county and it is therefore unnecessary to take evidence. The court rejected that approach stating: “Regulations are relevant, but in the end the court must take evidence on what the workers in this county, today, are doing, how they are being supervised, if at all; what is their [sic] relation between the county officials and the workers and providers and so forth.” Plaintiff indicated that it was prepared to proceed to trial and trial was had at which evidence of the type mentioned by the court was presented. Accordingly, the status of the IHSS providers as employees of the county was a question of fact, not a question of law. “[T]he question whether one is an independent contractor, agent or employee is largely one of fact depending on all the circumstances of the relations of the parties.” (Housewright v. Pacific Far East Line, Inc. (1964) 229 Cal.App.2d 259, 265 [40 Cal.Rptr. 208].)

The dissent asserts that the interpretation and application of the MMBA and the IHSS regulations is a question of law. Where there is no factual dispute, the interpretation and applicability of a statute to a given set of facts is a question of law. (Lewis v. City of Los Angeles (1982) 137 [187 Cal.Rptr. 273]; Mount Vernon Memorial Park v. Board of Funeral Directors & Embalmers (1978) 79 Cal.App.3d 874, 884 [145 Cal.Rptr. 275].) The evidence was conflicting as to whether an employer-employee relationship exists between defendant county and the IHSS providers as measured by the terms of the regulations. The trial court resolved the conflicts by making findings determinative of the issue. For example, the court found that defendant does not recommend a particular provider to a particular recipient and exercises no supervisory control over providers, the manner and performance of their tasks being determined by the recipient and the provider. Where, as here, the facts have been resolved, the construction of a statute and its application to a given situation are matters of law to be determined by the court. (Aguirre v. Southern Pac. Co. (1965) 232 Cal.App.2d 636, 642-643 [43 Cal.Rptr. 73].) “The interpretation and applicability of a statute is clearly a question of law for determination by the trial court in the initial instance.” (Beck v. Piatt (1972) 24 Cal.App.3d 611, 615 [101 Cal.Rptr. 236].) We may give deferential consideration to the trial court’s interpretation but we are not bound thereby. (Generes v. Justice Court (1980) 106 Cal.App.3d 678, 681 [165 Cal.Rptr. 222].)

The dissent charges that we improperly rely on the substantial evidence rule of review, thereby renouncing our duty of independent review of the trial court’s construction of the statute and regulations. The charge is unfounded. As noted above, the trial court’s findings are based on conflicting evidence. We employ the substantial evidence rule to uphold those findings, which are the starting point of our interpretation of the statute and the regulations.

IV

Plaintiff insists that the state and the county are joint employers of the IHSS providers, and the county’s role as a joint employer is sufficient to render the providers employees of the county for purposes of the MMBA.⁴

The trial court found that the county acts as the agent of the state in administering the IHSS program and concluded that in some circumstances an agent may be a joint employer, a dual employer or a special employer. (See County of Los Angeles v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d [179 Cal.Rptr. 214, 637 P.2d 681].) However, such a relationship arises only where both the general employer and the special employer have the right to control the employee’s activities. (Ibid.) The court found the county had no such right of control and therefore was not an employer of the IHSS providers under a dual or special employer theory. Whether the right to control existed and was exercised is generally a question of fact to be resolved from the reasonable inferences drawn from the circumstances shown. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 175 [151 Cal.Rptr. 671, 588 P.2d 811].) As previously indicated, substantial evidence supports the trial court’s finding that the county does not exercise control over and direct the activities of the IHSS providers.

Disposition

The judgment is affirmed.

Woods (Fred), J., concurred.

1 The regulations are not published in the California Code of Regulations (formerly the Administrative Code).

2 Available services include: domestic services (e.g., sweeping, changing bed linen); heavy cleaning to remove hazardous debris or dirt; preparation of meals, meal cleanup and planning of menus; laundry services; food shopping and other shopping or errands; nonmedical personal services; transportation to and from appointments with physicians, dentists and other health practitioners, or transportation necessary for fitting health related appliances, devices and special clothing; yard hazard abatement. (Welf. & Inst. Code, § 12300; reg. 30-757.)

3 The dissent ignores this regulation and instead concludes that the IHSS providers are employees of the county based on a detailed analysis of the regulations purporting to show that the county has the right to control the activities of the providers as well as their wages, hours and other conditions of employment. The dissent’s analysis is untenable in light of Welfare and Institutions Code section 12302 which provides that one of the three methods by which a county may deliver services under the IHSS program is hiring in-home supportive personnel in accordance with established county civil services requirements. Under this alternative the in-home personnel are employees of the county. The other methods of delivering IHSS services are contracting with specified public entities or agencies, or individuals, and making direct payments to the recipient for the purchase of services. (Welf. & Inst. Code, § 12302.) Thus, only one category specified by the Legislature involves hiring by the county and the consequent creation of an employer-employee relationship between the county and the person hired. The other two categories, both expressly and by implication, provide alternatives which do not create such a relationship between the county and the person or entity furnishing the IHSS services. Accordingly, the dissent’s attempt to classify the IHSS providers as employees of the county is contrary to the intent of the Legislature as evidenced by Welfare and Institutions Code section 12302 and cannot be justified by the MMBA for, regardless of its purposes, the MMBA does not apply, absent an employment relationship between the public entity and the person seeking to invoke its provisions.

4 Interestingly, in the Attorney General’s opinion upon which plaintiff relied below it is statefd: “While the concept that IHSS workers may have more than one ‘employer’ appears appropriate for purposes of some laws, it would seem inappropriate and unworkable for purposes of collective bargaining under California statutes.” (68 Ops.Cal.Atty.Gen. 194, 199, supra.)