Skidgel v. Cal. Unemployment Ins. Appeals Bd. ( 2018 )

Filed 6/14/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
TAMARA SKIDGEL,
Plaintiff and Appellant,
A151224
v.
CALIFORNIA UNEMPLOYMENT (Alameda County
INSURANCE APPEALS BOARD, Super. Ct. No. RG16810609)
Defendant and Respondent.
The In-Home Supportive Services (IHSS) program (Welf. & Inst. Code, § 12300
et seq.) provides in-home services to elderly or disabled persons so that they may avoid
institutionalization. For purposes of the state unemployment insurance system, IHSS
service recipients are considered employers of their service providers if the providers are
directly paid by the program or the recipient receives IHSS funds to pay their providers
(hereafter, Direct Payment Mode). (Unemp. Ins. Code, § 683.) Generally, an employee
of a close family member (child, parent or spouse) is excluded from unemployment
insurance coverage. (Id., § 631.) The California Unemployment Insurance Appeals
Board (CUIAB) ruled in a precedent decision that, because a close-family-member IHSS
service provider under the Direct Payment Mode is employed by the recipient, the
provider is subject to the exclusion of Unemployment Insurance Code section 631.1
(Matter of Caldera (2015) CUIAB Precedent Benefit Dec. No. P-B-507 (Caldera).)
1
The CUIAB, acting as a whole, may designate certain of its decisions as
precedents. (Unemp. Ins. Code, § 409.) “Precedent decisions are akin to agency
rulemaking . . . . [T]he board’s precedent decisions . . . interpret controlling statutes and
regulations, [and] their correctness as precedent relates to law and policy rather than to
1
Appellant Tamara Skidgel, an IHSS provider for her daughter, challenged the
validity of Caldera, arguing government entities were joint employers with the recipient,
thereby qualifying providers for unemployment insurance coverage despite the close-
family-member exclusion of Unemployment Insurance Code section 631. The trial court
upheld Caldera’s validity. We affirm because we conclude the Legislature, in enacting
Unemployment Insurance Code section 683, intended to designate the recipient as the
IHSS provider’s sole employer for purposes of unemployment insurance coverage.
I. STATUTORY FRAMEWORK AND BACKGROUND
A. IHSS
“IHSS is a state social welfare program designed to avoid institutionalization of
incapacitated persons. It provides supportive services to aged, blind, or disabled persons
who cannot perform the services themselves and who cannot safely remain in their homes
unless the services are provided to them. The program compensates persons who provide
the services [(IHSS providers)] to a qualifying incapacitated person [(IHSS recipient)].”
(Basden v. Wagner (2010) 181 Cal. App. 4th 929, 931; see Welf. & Inst. Code, § 12300,
subd. (a).)
1. State, County, and Recipient Roles
The state, counties, and IHSS recipients all play roles in implementing the IHSS
program. (See generally Guerrero v. Superior Court (2013) 213 Cal. App. 4th 912, 920–
922 (Guerrero).) The State Department of Social Services (DSS) sets rules for the
program and delegates day-to-day administration of the program to counties.2 For
example, DSS identifies specific services authorized under the IHSS program (Welf. &
Inst. Code, § 12301.1, subd. (a); DSS Manual, § 30-757.1) and creates standardized
factual resolutions.” (American Federation of Labor v. Unemployment Ins. Appeals Bd.
(1994) 23 Cal. App. 4th 51, 57–58.)
2
The DSS promulgates regulations to implement the statutes, and the IHSS
program regulations are found in the State Department of Social Services Manual of
Policies and Procedures, Social Services Standards, Service Program No. 7: In-Home
Supportive Services (DSS Manual). (Bedoe v. County of San Diego (2013)
215 Cal. App. 4th 56, 61.)
2
“hourly task guidelines” and a “uniform needs assessment tool” for county use in
assessing individual service needs and service-hour requirements. (Welf. & Inst. Code,
§§ 12301.2, subd. (a)(1), 12309; DSS Manual, §§ 30-756, 30-757, 30-761, 30-763.)
Following DSS guidelines and protocols, counties process applications for IHSS services,
assess applicants’ service needs, authorize services and service hours, and periodically
reassess recipients’ needs. (Welf. & Inst. Code, §§ 12301.1, subd. (b), 12301.15–
12301.17, 12301.2, subd. (b), 12301.21, subd. (b); DSS Manual, §§ 30-759, 30-761, 30-
763.) Counties also provide for delivery of IHSS services to recipients and carry out
“quality assurance” (fraud detection and prevention), including provider background
checks and orientations and potential unannounced home visits to confirm service
delivery. (Welf. & Inst. Code, §§ 12301.24, 12305.7–12305.87; DSS Manual, § 30-702.)
Recipients “direct [IHSS] authorized services.” (Welf. & Inst. Code, § 12300.4,
subd. (a).) Recipients who are authorized to receive more than 20 hours per week of
certain services are entitled to hire and pay their own providers. (Id., §§ 12303.4, 12304.)
Recipients of personal care services are entitled to have their choice of providers be given
preference. (Id., §§ 12300, subd. (c), 12304.1.)
2. Service Delivery Methods
The DSS Manual describes three general ways in which counties may deliver
IHSS services: county employment, purchase of service from an agency, and purchase of
service from an individual.3 (DSS Manual, §§ 30-767.1 to 30-761.13.) The purchase of
service from an individual includes either direct payments to providers or direct payments
to recipients to purchase services. (See DSS Manual, §§ 30-769.73 to 30-769.734; Welf.
3
Welfare and Institutions Code section 12302 specifically authorizes counties to
“hire homemakers and other in-home supportive personnel in accordance with
established county civil service requirements or merit system requirements for those
counties not having civil service, or may contract with a city, county, or city and county
agency, a local health district, a voluntary nonprofit agency, a proprietary agency, or an
individual or make direct payment to a recipient for the purchase of services.”
3
& Inst. Code, § 12302.) We refer to such direct payments collectively as the Direct
Payment Mode. Only the Direct Payment Mode is at issue in this case.4
When a county delivers services via the Direct Payment Mode, the state must
“perform or ensure the performance of all rights, duties, and obligations of the recipient
relating to [the] services as required for purposes of unemployment compensation,
unemployment compensation disability benefits, workers’ compensation, retirement
savings accounts, . . . federal and state income tax, and federal old-age, survivors, and
disability insurance benefits . . . .” (Welf. & Inst. Code, § 12302.2, subd. (a)(1).) This
payroll function includes paying or transmitting contributions, premiums or taxes under
these programs “on the recipient’s behalf as the employer” (id., § 12302.2, subd. (a)(2)),
and making relevant payroll deductions from checks paid directly to providers (id.,
§ 12302.2, subd. (b)). Although DSS issues checks, counties review providers’
timesheets and authorize the state’s disbursement of funds. (DSS Manual, § 30-769.241,
subd. (c).) Recipients must sign providers’ timesheets to verify authorized services were
provided. (DSS Manual, § 30-769.723.) Counties may change the service delivery
method if fraud is detected. (Id., § 30-767.133.)
3. Public Authorities
In carrying out IHSS program responsibilities, counties may “(1) Contract with a
nonprofit consortium to provide for the delivery of in-home supportive services. [¶] [or]
(2) Establish, by ordinance, a public authority to provide for the delivery of in-home
supportive services.” (Welf. & Inst. Code, § 12301.6, subd. (a); DSS Manual, § 30-
767.2.) A public authority or nonprofit consortium may deliver services by contracting
with an agency or using the Direct Payment Mode. (Welf. & Inst. Code, § 12301.6,
subd. (d).) Under the Direct Payment Mode, the state continues to perform the payroll
functions set forth in Welfare and Institutions Code section 12302.2. (Id., § 12301.6,
4
Although Caldera did not explicitly specify the service delivery method in that
matter, its analysis turns on provisions of the Unemployment Insurance Code that apply
only to the Direct Payment Mode. Therefore, we assume Caldera is a precedent decision
only with respect to cases utilizing the Direct Payment Mode as defined here.
4
subd. (i)(1).) A public authority or nonprofit consortium must establish a registry of
IHSS providers, conduct background checks on potential providers, refer providers to
recipients, and train providers and recipients. (Id., § 12301.6, subd. (e); DSS Manual,
§ 30-767.23.) Nonregistry providers selected by recipients must be referred to the public
authority or nonprofit consortium “for the purposes of wages, benefits, and other terms
and conditions of employment.” (Welf. & Inst. Code, § 12301.6, subd. (h).) Counties
may delegate additional duties to the entities (id., § 12301.6, subd. (e)(5)(A)), or may
continue to determine eligibility and authorize services and service-hours for recipients,
and review provider timesheets and authorize payment of their checks (see Guerrero,
supra, 213 Cal.App.4th at p. 924). Recipients retain any rights they may have to select
providers. (Welf. & Inst. Code, § 12301.6, subd. (c)(1).)
4. Statutory Guidance on Employer Status
The IHSS statutory scheme expressly identifies the “employer” of IHSS providers
in some instances. Each county must act as or establish an employer for purposes of
collective bargaining. (Welf. & Inst. Code, § 12302.25, subd. (a).) If a county
establishes a public authority or contracts with a nonprofit consortium, those entities are
deemed the employer for purposes of collective bargaining, but not for purposes of
liability due to negligence or intentional torts of providers. (Id., § 12301.6, subds. (c),
(f)(1).) However, DSS continues to perform payroll services on the recipient’s behalf if
the Direct Payment Mode is used. (Id., §§ 12301.6, subd. (i)(1); 12302.2, subd. (a)(2)
[“[c]ontributions, premiums, and taxes shall be paid or transmitted [by DSS] on the
recipient’s behalf as the employer” (italics added)].) The recipient is responsible for
directing providers for purposes of weekly overtime pay. (Id., § 12300.4, subds. (a), (i)
[state and counties immune from liability resulting from implementation of weekly
overtime rules].)
B. Unemployment Insurance
“The purpose of our state’s Unemployment Insurance Code is to provide benefits
to persons who are unemployed through no fault of their own, thereby reducing the
suffering caused by involuntary unemployment. ([Unemp. Ins. Code,] § 100; [citations].)
5
The Unemployment Insurance Code also provides disability benefits to compensate
eligible persons for unemployment caused by injury or sickness. ([Id.,] § 2625.)” (Hunt
Building Corp. v. Bernick (2000) 79 Cal. App. 4th 213, 218–219.) As remedial legislation,
it should be “liberally construed to afford all relief which the Legislature intended to
grant” consistent with the plain language of the statutes. (Messenger Courier Assn. of
Americas v. California Unemployment Ins. Appeals Bd. (2009) 175 Cal. App. 4th 1074,
1093.)
“The employer/employee relationship determines who must make contributions to
the unemployment and disability funds. [Citation.] Where an employee performs
services for an employer, the employer is required to make contributions and withhold
taxes; where an independent contractor performs services for a principal, the principal is
not required to withhold taxes or make contributions.” (Hunt Building Corp. v. Bernick,
supra, 79 Cal.App.4th at p. 219.) Statutory definitions of “employment,” “employee,”
and “employer” limit the scope of coverage.
“[E]mployment” is defined broadly as “service[] . . . performed by an employee
for wages or under any contract of hire, written or oral, express or implied.” (Unemp.
Ins. Code, § 601.) “[D]omestic service in a private home,” however, does not qualify as
employment for unemployment insurance purposes unless it is “performed for an
employing unit or a person who paid in cash remuneration of one thousand dollars
($1,000) or more to individuals employed in the domestic service in any calendar quarter
. . . .” (Id., § 629, subd. (a); see id., § 682, subd. (a) [corresponding definition of
“employer”].) Unemployment Insurance Code section 631 further excludes from
“employment” any “service performed by a child under the age of 18 years in the employ
of his father or mother, or service performed by an individual in the employ of his son,
daughter, or spouse, except to the extent that the employer and the employee have,
pursuant to [Unemployment Insurance Code s]ection 702.5, elected to make contributions
to the Unemployment Compensation Disability Fund.”
The definition of “employee” includes “[a]ny individual who, under the usual
common law rules applicable in determining the employer-employee relationship, has the
6
status of an employee.” (Unemp. Ins. Code, § 621, subd. (b).) “ ‘Employer’ means any
employing unit,[5] which for some portion of a day, has within the current calendar year
or had within the preceding calendar year in employment one or more employees and
pays wages for employment in excess of one hundred dollars ($100) during any calendar
quarter.” (Id., § 675.) Critically for this case, Unemployment Insurance Code
section 683 specifically addresses IHSS service delivery: “ ‘Employer’ also means any
employing unit which employs individuals to perform domestic service comprising in-
home supportive services . . . and pays wages in cash of one thousand dollars ($1,000) or
more for such service during any calendar quarter . . . , and is one of the following: [¶] (a)
The recipient of such services, if the state or county makes or provides for direct payment
to a provider chosen by the recipient or to the recipient of such services for the purchase
of services [(i.e., Direct Payment Mode)], subject to the provisions of Section 12302.2 of
the Welfare and Institutions Code. [¶] (b) The individual or entity with whom a county
contracts to provide in-home supportive services. [¶] (c) Any county which hires and
directs in-home supportive personnel in accordance with established county civil service
requirements or merit system requirements for those counties not having civil service
systems.” (Italics added.)
C. Employer Status of IHSS Recipients
Authorities addressing whether IHSS recipients are sole or joint employers of their
service providers have not been consistent, and differing conclusions have been reached
depending on context. In 1983, the Ninth Circuit Court of Appeals held that, in counties
providing funds to recipients to pay their own IHSS providers, the state and counties
were joint employers with recipients for purposes of the Fair Labor Standards Act of
1938 (FLSA) (29 U.S.C. § 201 et seq.) and thus liable for FLSA violations. (Bonnette v.
California Health and Welfare Agency (9th Cir. 1983) 704 F.2d 1465, 1467–1468, 1470,
5
Unemployment Insurance Code section 135 provides, as relevant here:
“ ‘Employing unit’ means an individual or type of organization that has in its employ one
or more individuals performing services for it within this state . . . .”
7
disapproved on other grounds by Garcia v. San Antonio Metro. Transit Auth. (1985)
469 U.S. 528, 539.) More recently, Division Two of this district followed Bonnette and
held that a county and public authority using the Direct Payment Mode were joint
employers with an IHSS recipient under the FLSA and thus liable for FLSA violations.
(Guerrero, supra, 213 Cal.App.4th at pp. 924, 937; see id. at pp. 926–938.) The court
also held the county and public authority were joint employers with the recipient under
state wage and hour laws.6 (Id. at pp. 945–951.) In 1984, the Third District Court of
Appeal held that the state and county (as the state’s agent) were joint employers with the
recipients for purposes of workers’ compensation coverage, thus allowing providers to
aggregate hours worked for multiple recipients and thereby meet the minimum hours
required for domestic workers’ coverage. (In-Home Supportive Services v. Workers’
Comp. Appeals Bd. (1984) 152 Cal. App. 3d 720, 725–727, 729–730 (In-Home Supportive
Services).)
In 1985, the Attorney General provided an opinion for a state legislator on
whether, when the recipient hires and supervises the provider, the state or county are joint
employers with the recipient for other purposes. (68 Ops.Cal.Atty.Gen. 194 (1985).)
With respect to unemployment insurance, the Attorney General concluded the recipient
was the sole employer.7 (Id. at p. 198.)
Prior to Caldera, a 2014 nonprecedent four-to-one CUIAB decision ruled joint
employment existed where a county with an established a public authority made direct
payments to the provider (the recipient’s mother), and thus the provider qualified for
6
The state was not a party to the case. (Guerrero, supra, 213 Cal.App.4th at
p. 917.)
7
The Attorney General reasoned that joint employment is not recognized in the
unemployment insurance context. (68 Ops.Cal.Atty.Gen., supra, at p. 198.) Because we
conclude that the Legislature specifically intended IHSS recipients to be the sole
employers of IHSS providers for purposes of unemployment insurance, we need not and
do not consider the issue of whether joint employment is otherwise recognized in the
unemployment insurance context. We express no view of the persuasiveness of the
Attorney General’s opinion.
8
unemployment benefits despite Unemployment Insurance Code section 631’s express
exclusion of family-member employment. (CUIAB Case No. AO-336919 (Ostapenko).)
In contrast, an overlapping panel in Caldera ruled on similar facts that a close-family-
member IHSS provider was expressly excluded from unemployment coverage pursuant
to Unemployment Insurance Code section 631. The panel questioned whether joint
employment applied in unemployment insurance law, and concluded that, even assuming
joint employment, Unemployment Insurance Code section 631 expressly excluded close-
family-member IHSS providers.8 (Caldera, supra, CUIAB Precedent Benefit Dec.
No. P-B-507, at p. 8.) In October 2015, the CUIAB adopted Caldera as precedent.9 (See
Unemp. Ins. Code, § 409.)
D. Instant Litigation
In April 2016, Legal Services of Northern California filed a complaint on behalf of
Skidgel challenging the validity of Caldera as precedent. Skidgel sued under
8
Caldera also questioned the argument, accepted in the Ostapenko decision, that a
public authority qualified as a second employer under Unemployment Insurance Code
section 683, subdivision (b). The trial court did not reach the question.
Skidgel indirectly raises the same argument. We agree that Unemployment
Insurance Code section 683 is intended to cover all IHSS providers, including those
working in counties with public authorities. However, a public authority may deliver
services via Direct Payment Mode or by contracting with agencies. (Welf. & Inst. Code,
§ 12301.6, subd. (d).) A public authority’s providers, therefore, will be covered by
Unemployment Insurance Code section 683 subdivision (a) (Direct Payment Mode) or
subdivision (b) (contract mode). We disagree that subdivision (b) refers to a contract
between a county and a public authority.
9
The CUIAB received comments about whether to adopt Ostapenko or Caldera as
a precedent decision. DSS and the Employment Development Department (EDD; see
Unemp. Ins. Code, § 301 [state agency charged with administering unemployment
insurance compensation program]) supported adoption of Caldera as precedent. Legal
Services of Northern California, the Legal Aid Society—Employment Law Center, and
the Service Employees International Union supported adoption of Ostapenko as
precedent. In the case before us, we accepted amici curiae appearances in support of
Skidgel by the National Employment Law Project, the United Domestic Workers of
America, AFSCME Local 3930, AFL-CIO, and the Service Employees International
Union Local 2015.
9
Unemployment Insurance Code section 409.2,10 which authorizes a declaratory relief
action challenging the validity of a precedent decision. She alleged she was an IHSS
provider for her daughter and anticipated seeking unemployment insurance if her
employment ended. Based on a joint record consisting of the comments submitted to the
CUIAB and the parties’ trial court briefs, the trial court affirmed the validity of Caldera
and entered judgment for the CUIAB.
II. DISCUSSION
A. Standard of Review
“[I]n a third-party declaratory action under [Unemployment Insurance Code]
section 409.2 the courts may only determine whether the board decision accords with the
law that would govern were the rule announced articulated as a regulation. There should
be no review of the underlying record or new evidence to discover whether the board
correctly resolved disputes on adjudicative facts.” (Pacific Legal Foundation v.
Unemployment Ins. Appeals Bd. (1981) 29 Cal. 3d 101, 111; see Messenger Courier Assn.
of Americas v. California Unemployment Ins. Appeals Bd., supra, 175 Cal.App.4th at
pp. 1087–1088 [reconciling Unemp. Ins. Code, § 409.2 authorization of judicial review
with apparent bar of judicial review in Gov. Code, § 11425.60]; see Unemp. Ins. Code,
§ 409 [referring to Gov. Code, § 11425.60].)
“In deciding whether the board’s application of governing law may be upheld,
reviewing courts will apply settled standards. Statutory construction is a matter of law
for the courts [citation], and administrative interpretations must be rejected where
contrary to statutory intent.” (Pacific Legal Foundation v. Unemployment Ins. Appeals
Bd., supra, 29 Cal.3d at p. 111.) “[U]nlike quasi-legislative regulations adopted by an
agency to which the Legislature has confided the power to ‘make law,’ and which, if
10
Unemployment Insurance Code section 409.2 provides: “Any interested person
or organization may bring an action for declaratory relief in the superior court in
accordance with the provisions of the Code of Civil Procedure to obtain a judicial
declaration as to the validity of any precedent decision of the appeals board issued under
Section 409 or 409.1.”
10
authorized by the enabling legislation, bind this and other courts as firmly as statutes
themselves, the binding power of an agency’s interpretation of a statute or regulation is
contextual: Its power to persuade is both circumstantial and dependent on the presence or
absence of factors that support the merit of the interpretation.” (Yamaha Corp. of
America v. State Bd. of Equalization (1998) 19 Cal. 4th 1, 7.) Those factors include “ ‘the
thoroughness evident in its consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors which give it power to
persuade . . . .’ ” (Id. at p. 14, italics omitted.) Here, the CUIAB thoroughly considered
the issue—soliciting comments from interested constituencies and considering
application of the issue to at least four adjudicated cases—but has not maintained a
consistent interpretation over time, as it acknowledged in Caldera itself. (Caldera,
supra, CUIAB Precedent Benefit Dec. No. P-B-507, at p. 3.) Our deference to the
decision, therefore, primarily turns on the validity and persuasiveness of its reasoning.
We apply well-established rules of statutory interpretation. “When construing a
statute, we must ‘ascertain the intent of the Legislature so as to effectuate the purpose of
the law.’ [Citation.] The words of the statute are the starting point. ‘Words used in a
statute . . . should be given the meaning they bear in ordinary use. [Citations.] If the
language is clear and unambiguous there is no need for construction, nor is it necessary to
resort to indicia of the intent of the Legislature . . . .’ [Citation.] If the language permits
more than one reasonable interpretation, however, the court looks ‘to a variety of
extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied,
the legislative history, public policy, contemporaneous administrative construction, and
the statutory scheme of which the statute is a part.’ [Citation.] After considering these
extrinsic aids, we ‘must select the construction that comports most closely with the
apparent intent of the Legislature, with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.’ ” (Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973, 977–978.)
11
B. The Legislature Has Designated Recipients the Sole Employers Under Direct
Payment Mode for Purposes of Unemployment Insurance
The CUIAB argues, and the trial court agreed, the plain language of IHSS statutes
and the Unemployment Insurance Code clearly establish that under the Direct Payment
Mode the IHSS recipient is the sole employer of the provider, and a provider of services
to a recipient who is a close family member is therefore excluded from unemployment
insurance coverage by Unemployment Insurance Code section 631. Although the
relevant statutes are not patently clear, we conclude the best reading of the statutes, in
light of their plain language and legislative history, is that IHSS recipients were intended
to be the sole employers of IHSS providers under the Direct Payment Mode for purposes
of unemployment insurance coverage.11 It follows that Unemployment Insurance Code
section 631 excludes IHSS providers who serve close-family-member recipients.
1. Statutory Language
Unemployment Insurance Code section 683 defines “employer” for purposes of
unemployment insurance coverage to “also” mean (1) an employer of IHSS providers
who (2) meets the $1,000 wage threshold generally applicable to domestic workers (cf.
Unemp. Ins. Code, § 629, subd. (a)) and (3) “is . . . [¶] . . . [t]he recipient” where
IHSS services are provided through the Direct Payment Mode. (Id., § 683, subd. (a).)
Drawing attention to the use of “also” before “employer” in the definition, Skidgel argues
the statute does not unambiguously exclude joint employment by both the recipient and
government entities. We agree, but note the most natural reading of the plain language,
whose sole apparent purpose is to define the employer of IHSS providers for purposes of
unemployment insurance coverage, is that the Legislature intended to designate only the
named entities or individuals as employers and not silently include others as well.
11
Because we reach this conclusion, we need not address Caldera’s argument,
adopted by the trial court, that Unemployment Insurance Code sections 631 and 683
exclude close-family-member IHSS providers from coverage even if government entities
are otherwise joint employers with recipients. (Caldera, supra, CUIAB Precedent
Benefit Dec. No. P-B-507, at p. 4.)
12
Skidgel also relies on the code’s catchall provision that “ ‘[e]mployee’[12] means . . .
[¶] . . . [¶] . . . [a]ny individual who, under the usual common law rules applicable in
determining the employer-employee relationship, has the status of an employee” (id.,
§ 621, subd. (b)) to argue government entities are also employers of IHSS providers
under a joint employment theory. However, section 683 is more specific and takes
precedence to the extent it conflicts with section 621, subdivision (b). (Code Civ. Proc.,
§ 1859; Fleming v. Kent (1982) 129 Cal. App. 3d 887, 891.)
Similarly, the most natural reading of Welfare and Institutions Code
section 12302.2 is that the Legislature intended the state to perform simply a payroll
function on behalf of the recipient as the sole employer of IHSS providers under the
Direct Payment Mode. The statute provides that, in Direct Payment Mode, DSS “shall
perform or ensure the performance of all rights, duties, and obligations of the recipient
relating to [IHSS] services as required for purposes of unemployment compensation, [and
other public benefits or tax liabilities.] . . . [¶] . . . Contributions, premiums, and taxes
shall be paid or transmitted on the recipient’s behalf as the employer . . . . [¶] . . .
Contributions, premiums, and taxes paid or transmitted on the recipient’s behalf for
unemployment compensation, workers’ compensation, and the employer’s share of
federal old-age, survivors, and disability insurance benefits shall be payable in addition to
the maximum monthly amount [authorized by statute for IHSS services for the recipient].
. . . [¶] . . . [¶] . . . Funding for the costs of administering this section and for
contributions, premiums, and taxes paid or transmitted on the recipient’s behalf as an
employer pursuant to this section shall qualify, where possible, for the maximum federal
reimbursement. . . .” (Welf. & Inst. Code, § 12302.2, subds. (a)(1)–(3), (c), italics
added.) This statutory language strongly implies the Legislature intended DSS to
12
Under the Unemployment Insurance Code, section 621, subdivision (b) defines
“employee” and section 683 defines “employer”; however, section 675 of the statutory
scheme essentially incorporates the definition of “employee” into its foundational
definition of “employer”: “any employing unit, which . . . has . . . in employment one or
more employees” meeting a certain wage threshold. (Italics added.)
13
perform only an administrative function on behalf of the recipient as the sole employer,
and to relieve the recipients of these administrative burdens.
Finally, as Caldera reasons and the trial court ruled, the fact that Unemployment
Insurance Code section 631 includes an express exception to the close-family-member
exclusion supports an inference that the Legislature did not intend other exceptions to be
implied. “ ‘[I]f exemptions are specified in a statute, we may not imply additional
exemptions unless there is clear legislative intent to the contrary.’ ” (Caldera, supra,
CUIAB Precedent Benefit Dec. No. P-B-507, at p. 7, quoting Sierra Club v. State Bd. of
Forestry (1994) 7 Cal. 4th 1215, 1230; see Caldera, at p. 5.)13
In sum, the most natural reading of Unemployment Insurance Code sections 631,
683, and Welfare and Institutions Code section 12302.2 is that the Legislature intended
the recipient to be the sole employer of IHSS providers under the Direct Payment Mode
for purposes of unemployment insurance.
2. Statutory Purpose and Legislative History
Our reading of the plain language of the statutes is consistent with the statutes’
purpose as revealed by their legislative history. Therefore, we adopt what we believe to
be the natural reading.
a. Unemployment Insurance Code Section 631
Unemployment Insurance Code section 631 was enacted in 1953 and has rarely
been applied or construed in published judicial or administrative decisions. In Miller v.
Department of Human Resources Dev. (1974) 39 Cal. App. 3d 168, 172, the court held that
the purpose of this section is to prevent “depletions of the fund . . . result[ing] from a lack
of or inability to control eligibility”—i.e., prevent fraud arising from collusion between
family members who control the employment relationship. A New Jersey case illustrates
13
The trial court considered but rejected Skidgel’s argument that the state’s
payment of unemployment insurance contributions pursuant to Welfare and Institutions
Code section 12302.2 was equivalent to the express exception in Unemployment
Insurance Code section 631 and thus qualified as an implied exception under the statute.
Skidgel does not renew the argument on appeal.
14
the potential collusion problem alluded to in Miller. In Lazar v. Bd. of Review (1962)
77 N.J. Super. 251 [186 A.2d 121], the claimant worked in her husband’s store (operating
through a sham corporation). She took “seasonal lay off[s]” for the maximum period in
which she could collect unemployment benefits. (Id. at p. 255.) The court held the
claimant was ineligible for benefits, explaining: “It is apparent that the employment
arrangement was made purely for the benefit of the Lazar family, and could arise only out
of the husband-wife relationship—a family employment excluded from the term
‘employment’ under [New Jersey law]. While claimant was working at the [store] she
had three children at home, respectively aged 3, 4 1/2 and 6 years, and allegedly in the
care of her mother or a babysitter. It is significant that claimant stopped working during
the slack season, but just long enough to collect maximum total benefits of 26 weeks
before returning to work the first time, and maximum total benefits of 19 1/2 weeks the
second time.” (Id. at p. 258.)
Skidgel maintains “[t]here is almost no risk of collusion between an employee and
a child or spouse to fraudulently obtain [unemployment insurance] benefits in the IHSS
context because of the county or public authority’s control . . . in hiring, compensating,
and setting the hours of an IHSS worker.” However, the Legislature has demonstrated
significant concern about fraud and collusion in the IHSS program despite extensive
government involvement. Counties are required to perform criminal background checks
on providers (Welf. & Inst. Code, §§ 12301.6, subd. (e)(2)(A)(i), 12305.86, 12306.5),
audit their IHSS records to identify fraud and recapture overpayments (id., §§ 12305.7–
12305.83), and bar providers, recipients, and authorized representatives of recipients
from the program if they are convicted of certain types of government fraud (id.,
§§ 12300.3, subd. (f)(1), 12301.6, subd. (e)(2)(A)(ii)–(iii), (m)(1)(C), 12305.81;
12305.87). Providers must attend program orientations and both recipients and providers
must certify the accuracy of providers’ timesheets. (Id., §§ 12301.24, 12301.25.) The
Legislature has also enacted legislation specifically governing when close family
members may receive compensation as IHSS providers despite having a preexisting legal
duty to care for the recipients. (Id., §§ 12300, subd. (e), 12301, subd. (a).) These
15
concerns about fraud, collusion and close family members’ duty of care are consistent
with the anti-collusion purpose of Unemployment Insurance Code section 631 and thus
support its application to close-family-member IHSS providers.14
b. Unemployment Insurance Code Section 683 and Welfare and
Institutions Code Section 12302.2
In 1978, the Legislature enacted Unemployment Insurance Code section 683 and
Welfare and Institutions Code section 12302.2, while also amending Labor Code
section 3351.5, to add subdivision (b) (analogous to Unemp. Ins. Code, § 683 but
applicable to workers’ compensation coverage). (Stats. 1978, ch. 463, §§ 2–4, pp. 1571–
1572.) The legislation came not long after domestic workers were first added to the
unemployment and workers’ compensation statutory schemes. (See, e.g., Stats. 1975,
ch. 1263, § 4, p. 3314; Stats. 1977, ch. 17, § 17, p. 30; Stats. 1978, ch. 2, § 12 et seq.,
p. 12.) Assembly Bill No. 3028 (1977–1978 Reg. Sess.) was proposed in response to
administrative and court decisions that counties were the employers of IHSS providers
under Direct Payment Mode. To forestall counties from responding to these decisions by
either contracting out IHSS services or using civil service employees as IHSS providers,
thereby greatly increasing state costs, the legislation authorized the state to serve as the
payroll servicer for recipients and assume for itself those employer costs, resulting in a
14
Skidgel has argued an unemployment insurance regulation demonstrates the
EDD does not view joint employment as incompatible with Unemployment Insurance
Code section 631’s exclusion of close-family-member employment. The regulation
provides that coverage is not barred for an employee of a partnership with a close-family-
member partner if at least one other partner is not a close family member. (Cal. Code
Regs., tit. 22, § 631-1(e).) Rather than an exception to the family exclusion of
Unemployment Insurance Code section 631 for joint employment, this regulation extends
the exclusion to employment by a partnership consisting solely of close-family-member
partners to avoid a subterfuge of the exclusion. (See Caldera, supra, CUIAB Precedent
Benefit Dec. No. P-B-507, at pp. 7–8, distinguishing Matter of Lembo (1971) CUIAB
Precedent Benefit Dec. No. P-B-111.) If anything, this regulation tends to support our
view that the anti-collusion policy underlying the exclusion is taken seriously by the
designated enforcement agency.
16
smaller net cost increase to the state.15 The clear intent was to relieve counties of the
burdens of employer status in the IHSS program altogether.
Some legislative history materials reflect a concern that Welfare and Institutions
Code section 12302.2 could lead to a determination that the state was the affected IHSS
providers’ employer.16 This expressed concern, however, was not necessarily
inconsistent with an intent to make the recipient the sole employer for purposes of
unemployment insurance. The legislative history demonstrates that the Legislature was
concerned about counties’ employer liability for social security as well as unemployment
insurance and workers’ compensation payments. (See Employment Development Dept.,
Enrolled Bill Rep. on Assem. Bill No. 3028 (1977–1978 Reg. Sess.) prepared for
Governor Brown (July 10, 1978) p. 1.) Welfare and Institutions Code section 12302.2,
subdivision (a)(1), expressly requires DSS to perform “federal old-age, survivors, and
disability insurance” obligations on behalf of recipients as well as unemployment
insurance and workers’ compensation obligations. Because social security is a matter of
15
See Assembly Ways and Means Committee, Analysis of Assembly Bill
No. 3028 (1977–1978 Reg. Sess.) as amended June 8, 1978, pages 1–2; Department of
Social Services, Enrolled Bill Report on Assembly Bill No. 3028 (1977–1978 Reg. Sess.)
prepared for Governor Brown (July 7, 1978) pages. 1–2; Employment Development
Department, Enrolled Bill Report on Assembly Bill No. 3028 (1977–1978 Reg. Sess.)
prepared for Governor Brown (July 10, 1978) page 1; Department of Finance, Enrolled
Bill Report on Assembly Bill No. 3028 (1977–1978 Reg. Sess.) prepared for Governor
Brown (July 13, 1978) page 2. All of these materials are proper sources of legislative
intent. (See Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005)
133 Cal. App. 4th 26, 31–37; but see In-Home Supportive Services, supra,152 Cal.App.3d
at p. 739, fn. 23 [materials in governor’s chaptered bill file of dubious value in
ascertaining legislative intent].)
16
See Assembly Office of Research, third reading analysis of Assembly Bill
No. 3028 (1977–1978 Reg. Sess.) as amended June 8, 1978, page 1 (“[a]ccording to the
Assembly Human Resources Committee analysis, the adoption of this bill could make the
state the employer of 55,000 service providers”); Department of Finance, Enrolled Bill
Report on Assembly Bill No. 3028 (1977–1978 Reg. Sess.) prepared for Governor Brown
(July 13, 1978) page 2 (“[f]inance staff are concerned that State responsibility for
assuring performance of the payrolling function may result in the courts finding the State
the ‘employer’ of IHSS providers”).
17
federal law, the Legislature could not unilaterally designate the recipient as the sole
employer for social security purposes. Therefore, even though we conclude the
Legislature intended to designate the recipient as the sole employer for purposes of
unemployment insurance (a matter of state law),17 there remained a danger the state
would be deemed the sole or joint employer for purposes of social security. An
expression of concern regarding possible consequences is not an expression of intent to
achieve that result.
In sum, we find the natural reading of the statutes to be consistent with the
legislative history. We therefore conclude that Unemployment Insurance Code
section 683 and Welfare and Institutions Code section 12302.2 identify IHSS recipients
the sole employers of IHSS providers in the Direct Payment Mode. An IHSS provider
who provides service to a close-family-member recipient consequently is excluded from
unemployment coverage under Unemployment Insurance Code section 631.
3. Conflict with In-Home Supportive Services
We recognize that our holding is, at least implicitly, in conflict with the holding of
In-Home Supportive Services, supra, 152 Cal. App. 3d 720. Although we address
unemployment insurance coverage and In-Home Supportive Services addresses workers’
compensation coverage, the language and legislative history of the relevant statutes in the
two statutory schemes is similar.
Caldera concludes, and the trial court agreed, that Bonnette v. California Health
and Welfare Agency, supra, 704 F.2d 1465, In-Home Supportive Services, supra,
152 Cal. App. 3d 720, and Guerrero, supra, 213 Cal. App. 4th 912, are unpersuasive in the
17
Our unemployment insurance law is designed to meet federal requirements for
assistance in the administration of unemployment benefits. (See Unemp. Ins. Code,
§ 101; Stats. 1978, ch. 2, § 108, p. 52; compare Unemp. Ins. Code, § 629, subd. (a) with
26 U.S.C. § 3306(a)(3) [extending coverage to domestic employees].) Theoretically,
federal law could restrain the Legislature’s ability to unilaterally designate employers for
purposes of state unemployment law. However, we are not aware of any interpretation of
federal unemployment law that conflicts with state law designating an IHSS recipient as
the sole employer of an IHSS provider for purposes of unemployment insurance.
18
unemployment insurance context in part because they each address “a statutory scheme
very different from the unemployment insurance statutes and relies upon a definition of
‘employer’ that differs from the definition used in the unemployment insurance law.
Moreover, neither of those statutory schemes contains any exclusion similar to that set
forth in [Unemployment Insurance Code] section 631.” (Caldera, supra, CUIAB
Precedent Benefit Dec. No. P-B-507, at p. 5.) The CUIAB makes similar arguments on
appeal. We agree that the FLSA and state wage and hour statutory schemes are
distinguishable. Whether the workers’ compensation scheme is materially
distinguishable is a closer question.
Labor Code section 3351 defines “employee” to include “every person in the
service of an employer under any appointment or contract of hire or apprenticeship,
express or implied, oral or written, whether lawfully or unlawfully employed.” (Cf.
Unemp. Ins. Code, § 601 [defining “employment”].) Labor Code sections 3351,
subdivision (d), and 3352, subdivision (a)(8), together include domestic service in a
private home when earnings (or, in the workers’ compensation context, hours) exceed
certain thresholds.18 (Cf. Unemp. Ins. Code, § 629, subd. (a).) However, similar to
Unemployment Insurance Code section 631’s exclusion of close family members from
employment, Labor Code section 3352, subdivision (a)(1) excludes any “person defined
in [Labor Code section 3351, subdivision (d)] who is employed by his or her parent,
spouse, or child.”19 Labor Code section 3351.5, subdivision (b), provides that
18
Labor Code section 3351, subdivision (d) provides, “Except as provided in
[Labor Code section 3352, subdivision (a)(8)], any person employed by the owner or
occupant of a residential dwelling whose duties are incidental to the ownership,
maintenance, or use of the dwelling, including the care and supervision of children, or
whose duties are personal and not in the course of the trade, business, profession, or
occupation of the owner or occupant” is an employee. Labor Code section 3352,
subdivision (a)(8) excludes such persons if, within certain calendar quarters, the
“employment was, or was contracted to be, for less than 52 hours” or “for wages of not
more than [$100].”
Unemployment Insurance Code section 631 excludes “services performed . . . in
19
the employ of” a close family member from “employment” and Labor Code section 3352,
19
“employee” includes “[a]ny person defined in [Labor Code section 3351 subdivision (d)]
who performs domestic service comprising in-home supportive services . . . . For
purposes of [Labor Code s]ection 3352, such person shall be deemed an employee of the
recipient of such services for workers’ compensation purposes” under the Direct Payment
Mode. (Cf. Unemp. Ins. Code, § 683.)20
The focus of In-Home Supportive Services was the wage and hour thresholds for
workers’ compensation coverage. The IHSS provider’s work with the recipient in that
case had not exceeded the quarterly minimum work hours and wages required for
coverage pursuant to Labor Code section 3352, but the provider met the requirement if
her work for two other recipients in the relevant time period was counted. DSS and its
insurer challenged a workers’ compensation award, arguing the provider’s employment
relationship with the recipient was the exclusive ground of coverage. Affirming the
award, the reviewing court found that the workers’ compensation law provided for
coverage based upon the state’s status as a joint employer of the provider. (In-Home
Supportive Services, supra, 152 Cal.App.3d at p. 725.) To reach this conclusion, the
court was required to construe provisions of the Labor Code governing workers’
compensation coverage for domestic employment (including Lab. Code, §§ 3351, 3351.5,
3352). (In-Home Supportive Services, at p. 727.)
We do not quarrel with In-Home Supportive Services’s discussion and application
of well-established common law principles and the broad statutory reach of Labor Code
subdivision (a)(1) excludes a “person . . . employed by” a close family member from the
definition of “employee.” We see no material distinction in the wording of the two
statutes.
20
Labor Code section 3351.5, subdivision (b) refers to the IHSS provider as “an
employee” of the recipient, not the employee of the recipient. (See In-Home Supportive
Services, supra, 152 Cal.App.3d at pp. 733–734.) Unemployment Insurance Code
section 683 provides that “ ‘[e]mployer’ also means any employing unit which employs
[IHSS providers] and pays [at least $1,000 in a quarter] and is . . .[¶] . . . [t]he recipient”
under the Direct Payment Mode. (Italics added.) In our view, both statutes are
ambiguous as to whether the recipient is intended to be the sole employer or possibly one
of multiple joint employers.
20
section 3351 in establishing joint employment in that matter (In-Home Supportive
Services, supra, 152 Cal.App.3d at pp. 727–733), nor with its observation that an IHSS
worker is “archetypically within the remedial purposes of the workers’ compensation
law” (id. at p. 732). But the general application of those principles does not provide the
dispositive answer to the question before us.
After finding the state to be a joint employer, the In-Home Supportive Services
court then inquired “whether an IHSS worker is nonetheless excluded from coverage
under [Labor Code] section 3351 by virtue of a statutory exclusion.” (In-Home
Supportive Services, supra, 152 Cal.App.3d at p. 733.) There, the state did not rely on
the exclusions of Labor Code section 3352, and no statute expressly excluded the IHSS
provider’s employment relationship with the state from coverage. The state essentially
argued the 1978 amendment to Labor Code section 3351.5, subdivision (b) (Stats. 1978,
ch. 463, § 2, p. 1571)—stating an IHSS provider is “an employee of the recipient”—by
negative implication meant the provider could not also be an employee of the state. (In-
Home Supportive Services, at pp. 733–734.) The court rejected the argument as a matter
of statutory interpretation. (Id. at p. 734.)
Our disagreement is with In-Home Supportive Services’s interpretation of the
legislative history of Statutes 1978, chapter 463, which added subdivision (b) to
section 3351.5 of the Labor Code at the same time it enacted Unemployment Insurance
Code section 683 and Welfare and Institutions Code section 12302.2. In-Home
Supportive Services holds that the purpose of the legislation was to relieve recipients of
the burdens of being deemed the employers of IHSS providers, rather than to relieve any
burdens of the counties or the state. (In-Home Supportive Services, supra,
152 Cal.App.3d at p. 738 [“[t]he statute tells us the Legislature is concerned with the
welfare of the recipient, not the state”].) However, in so doing, the court relied on a
statement that addressed only the factual basis for deeming the legislation an urgency
statute: “Coverage of in-home supportive services for workers’ compensation,
unemployment and disability insurance has resulted in hardship to recipients of such
services and confusion as to the status of recipients as employers. In order to provide for
21
the welfare of recipients by establishing a system of assurances and delegation of
performance of employer’s duties, it is necessary that this act take effect immediately.”
(Stats. 1978, ch. 463, § 6, p. 1573; see In-Home Supportive Services, at p. 736.) In-Home
Supportive Services places too much weight on this statement, which does not purport to
be a complete description of the Legislature’s intent in enacting the legislation.
The In-Home Supportive Services court also expressly rejected the interpretation
of legislative intent we find supported by the legislative history: i.e., the statutory
enactments were designed to be the least costly response to administrative and court
decisions that had deemed counties the IHSS providers’ employers. (See In-Home
Supportive Services, supra, 152 Cal.App.3d at p. 740.) The court noted that the
government parties in In-Home Supportive Services had cited to an agency memorandum
“sent to some members of the Legislature and legislative staff to persuade them to enact”
the legislation. (Ibid.) The court ruled the memorandum could not demonstrate the
Legislature’s intent because evidence was lacking as to whether the whole Legislature
received or relied on it. (Id. at p. 740; see id. at pp. 739–740 & fns. 25, 27.) As we
explained ante, however, other legislative history materials of types deemed reliable
indicators of legislative intent (committee analyses and enrolled bill reports sent to the
governor; see Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc.,
supra, 133 Cal.App.4th at pp. 31–37; In re Conservatorship of Whitley (2010) 50 Cal. 4th
1206, 1218, fn. 3 [enrolled bill reports recognized as “instructive” as to legislative
intent]), and which were not discussed in In-Home Supportive Services, support our
interpretation of the legislative intent.
In sum, we are unpersuaded by In-Home Supportive Services’s analysis of the
relevant legislative history. We do not, however, need to decide if its ultimate conclusion
of joint employment for worker’s compensation coverage was correct. We conclude that,
at least for purposes of unemployment insurance coverage, the Legislature has clearly
designated IHSS recipients as the sole employers of IHSS providers under the Direct
Payment Mode.
22
III. DISPOSITION
The judgment of the superior court upholding the validity of Caldera, supra,
CUIAB Precedent Benefit Decision No. P-B-507 is affirmed. Skidgel shall pay the
CUIAB’s costs on appeal.
23
_________________________
BRUINIERS, J.
WE CONCUR:
_________________________
SIMONS, Acting P. J.
_________________________
NEEDHAM, J.
A151224
24
Superior Court of Alameda County, No. RG16810609, Robert B. Freedman, Judge.
Legal Services of Northern California, Stephen E. Goldberg and Wade Askew for
Plaintiff and Appellant.
Anthony Mischel and Catherine Ruckelhaus for National Employment Law Project as
Amicus Curiae on behalf of Plaintiff and Appellant.
Rothner, Segall & Greenstone, Anthony R. Segall and Hannah Weinstein for United
Domestic Workers of America, AFSCME Local 3930, AFL-CIO as Amicus Curiae on
behalf of Plaintiff and Appellant.
Laurel R. Webb for Service Employees International Union Local 2015 as Amicus
Curiae on behalf of Plaintiff and Appellant.
Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General,
Susan M. Carson and Hadara R. Stanton, Deputy Attorneys General, for Defendant and
Respondent.
25