WORKERS' COMPENSATION CALIFORNIA
FOR OFF-DUTY RECREATIONAL ACTIVITIES
INTRODUCTION
Aiesha Davis, is an associate at Tran & Williams. Davis was invited to a golfing event along with her co-workers planned by her employer. While at the golfing event with the entertainment law group, Davis was struck in the head by a golf club. This memo is inquiring whether or not she is entitled to workers' compensation for her injuries. This memo analyzes whether Davis's claim is within the exception for off-duty recreational activities, which appears in section 3600, subdivision (a)(9) of the Labor Code.
DISCUSSION
This memo analyzes whether Davis's injury is compensable within the reasonable expectancy exception under section 3600, subdivision (a)(9) of the Labor Code workers' compensation. Legislation has given direction as to what injuries “arise out of the course of employment.” However, an injury is not covered within workers' compensation when the injury occurs during an off-duty “recreational activity” that the employee voluntarily participates in unless there is a “reasonable expectation.” A reasonable expectation qualifies if participation is reasonably expected by the employer, or is expressly or impliedly required by the employer.
In Ezzy, the court considered a two part test derived from the reasonable expectancy language. The Ezzy court said, “the test of ‘reasonable expectancy of employment' ... consists of two elements: (1) whether the employee subjectively believes his or her participation in an activity is expected by the employer, and (2) whether that belief is objectively reasonable.” Ezzy v. Workers' Comp. Appeals Bd., 146 Cal. App. 3d 252, 260 (1983) The subjective element is met when the employee testifies she subjectively believes that the employer expected her to participate. While here Davis was not under oath, the subjective element is met. The objective element is met when this subjective belief is objectively reasonable. Ezzy v. Workers' Comp. Appeals Bd., 146 Cal. App. 3d 252, 260 (1983). Here, the objective element is met.
SUBJECTIVE ELEMENT
The subjective element is a question of fact. When determining the subjective element, the Ezzy court looked to “whether the employee subjectively believe[d] his or her participation in an activity is expected by the employer.” The subjective element is a “lax standard [that is] easily met”. Wilson v. Workers' Comp. Appeals Bd., 196 Cal. App. 3d 902, 906 (1987). Here, if Davis testifies like she did in her interview when she said, “I thought this was something I was expected to do” the subjective element would be met.
OBJECTIVE ELEMENT
The objective element is a question of law. When determining the objective element, the Ezzy courts looked to “whether [the subjective belief] is objectively reasonable.” To answer if the subjective belief is objectively reasonable, the objective element is supported by several factors. The “specific factors applied by the court to determine the reasonableness of the employee's belief included employer involvement, benefit to the employer, and job related pressure to participate.” Meyer v. Workers' Comp. Appeals Bd., 157 Cal. App. 3d 1036, 1041 (1984). Here, the subjective belief is objectively reasonable because all three factors are weighed and are present to an extent.
The issue is the extent of “employer involvement” in the golfing event
Courts are more likely to conclude the employee's subjective belief was objectively reasonable, if the employer was involved in the activity. Employer involvement is supported when the employer requires, encourages, or financially subsidizes the activity. For example, in Ezzy, there was substantial employer involvement. The employer encouraged participation in an off-duty softball league by subsidizing T-shirts and equipment. Also, the employer subsidized a post-season banquet which all employees were encouraged to attend. Furthermore, the employer's administrative assistant sent memos to employees to encourage them to participate. Even home movies of softball were shown in the conference room and employees were encouraged to watch. The Ezzy court held that the injury was compensable under workers' compensation.
Here, the firm's involvement in the golfing event was relatively equivalent to the employer involvement in Ezzy. Here, employer's administrative assistant sent Davis a memo encouraging her to attend the golfing event. Additionally, the memo specified that transportation to the golfing event would be provided for by the partner of the firm. While in Ezzy T-shirts were subsidized by the employer, here Davis borrowed golf clubs subsidized by the employer. One difference is that here, the firm indirectly subsidized membership for Avakian who gave access to Davis, but there employer directly subsidized T-shirts. Also, because the golfing event was a routine after the team had won a big case, Tran & Williams indirectly encouraged team members including Davis to participate. The firm could point to the fact that although the entire entertainment law group participated, it was only four employees from the fifty lawyers at Tran & Williams. There, Ezzy's firm encouraged companywide participation. Nevertheless, here a substantial amount of employer involvement is present.
Conversely, in Aetna, there was minimal employer involvement. While at least one of the partners participated in off duty beer drinking, this partner only “tacitly permitted and consented” to the activity. Aetna Cas. & Sur. Co. v Workers' Comp. Appeals Bd., 187 Cal. App. 3d 922, 926 (1986). The injury occurred while driving home from work, however, simply driving to or away from work does not qualify as compensable under workers' compensation, unless the employee became intoxicated during the course of employment. Aetna Cas. & Sur. Co. v Workers' Comp. Appeals Bd., 187 Cal. App. 3d 922, 926 (1986). There, the beer was not subsidized by the company the night of the car accident nor at previous occasions. Beer drinking had only occurred two or three times during the course of employment and was never required before or during employment. Condoning an activity is not substantial enough for employer involvement. The Aetna court held that the injury was not compensable under worker's compensation.
Here, unlike Aetna, employer subsidized, encouraged, and routinely scheduled the activity. There, because beer drinking was not encouraged nor subsidized, the activity was not substantial enough for employer involvement. However, both in Aetna and here a partner participated in the off-duty activity with the employees. In our case, there is not as much substantial employer involvement than in Ezzy but there is substantially more employer involvement than in Aetna.
In Meyer there was not substantial employer involvement. The employer provided the salesmen with company cars to use anywhere within the country. The supervisor, invited the car salesmen to the outing only several days before the trip. Myer became intoxicated before he started driving on the trip. Meyer v. Workers' Comp. Appeals Bd., 157 Cal. App. 3d 1036 (1984). In Meyer, there was no evidence that the company subsidized the event. The Meyer court held the injury was not compensable under workers' compensation.
Here, unlike Meyer, the golfing event was a regularly scheduled activity whereas the trip was a last minute gathering. Meyer become intoxicated before the activity, and he is at fault for reckless conduct outside the course of employment, Davis's fault is at a lower degree because it was her negligence within the course of employment. Negligence is not a bar for compensation. Unlike Myer where there is a lack of evidence that the company subsidized the event, here Davis's employer indirectly subsidized the event by subsidizing Avakian's membership. However, like Myer who was using the subsidized company car at the time of the injury, Davis was using the subsidized company golf clubs at the time of the injury. Here, unlike Myer, there is substantially more employer involvement.
The issue is the extent of “benefit to the employer” in the golfing event.
Courts are more likely to conclude the employee's subjective belief was objectively reasonable if employer benefited from improved office cooperation, camaraderie, or job related performance. There was a substantial benefit to the employer in Ezzy. There the employer benefited by building comradery. By meeting the co-ed requirement the team was able to participate in the activity. As a female, Ezzy's participation helped meet the co-ed requirement. In Ezzy, the employer stated that the games were good for “office spirit.” Ezzy v. Workers' Comp. Appeals Bd., 146 Cal. App. 3d 252, 257 (1983). Furthermore, the activity was for everyone in the office. The court Ezzy held that the injury was compensable.
Here, unlike in Ezzy, Davis's participation did not fulfill any rule to participate. There, the partner of the firm said participation was good for camaraderie within the office staff. Here, the employer said participation was good for “making connections” or camaraderie with prospective clients. Unlike Ezzy, where the activity was for the entire office, here the activity was only for a small group of employees. Unlike Ezzy, where not participating could have a consequence, here there was no consequence for not playing. However, here employer did benefit from a fair amount of camaraderie among the “tightly knit” entertainment law group. While “there must be a substantial nexus between an employer's expectations or requirements and the specific off-duty activity in which the employee was engaged,” both in Ezzy and here there was an intangible benefit as defined by the employer. Young v. Workers' Comp. Appeals Bd., 227 Cal. App. 4th 472, 480 (2014).
There was not a substantial benefit to the employer in Smith. Mrs. Smith claims that participation was beneficial because it carried out the policy of building camaraderie among teachers and students. Smith v. Workers' Comp. App. Bd., 191 Cal. App. 3d 127, 134 (1987). However, Mr. Smith was more of a volunteer, his participation at the picnic was not a reasonable expectation of his employment, and windsurfing did not improve job performance. The purported benefit of furthering teacher student camaraderie was not substantial enough. The Smith court held that the damage was not compensable under workers' compensation.
Here, unlike in Smith, the benefit to the employer was to build camaraderie with prospective clients. There, the benefit to the employer was to build camaraderie with teachers and students. There, the employer subsidized both teachers and students. Here, the employer subsidized only employees but not the targeted prospective clients. Unlike Smith who engaged in windsurfing, which was not intended nor subsidized by the school, here golfing was the job-related activity Davis's employer intended her to participate in and subsidized. However, both in Smith and here, the injury occurred while the employee was located at a company subsidized event. Here, the moderate amount of benefit to the employer was not as much as in Ezzy but it was more than in Smith.
The issue is the extent of “pressure” to participate
Courts are more likely to conclude the employee's subjective belief was objectively reasonable if there was pressure to participate. When weighing pressure, courts look for two considerations. First, the employer's actions and frequency. Second, the feelings of the employee based on relative position and evaluation. In Kidwell, there was substantial pressure. First, a co-worker told Kidwell that one needed to practice for one's annual fitness evaluation. Co-workers frequently repeated that fitness was significant to the job. Second, Kidwell court said fitness test placed employee under “pressure to practice a test.” Kidwell v. Workers' Comp. Appeals Bd., 33 Cal. App. 4th 1130, 1139 (1995). While failing the test did not mean the employee would lose their job, failure to pass the fitness evaluation did result in disqualification for an additional $130 per month in salary. The Kidwell court held the injury to be compensable under workers' compensation.
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Written by Shawn Golshani