4-1-1 on Comp: Private Firefighters in CA

Bruce Burk

Butte County, CA (WorkersCompensation.com) – California has recently had the worst set of wildfires in history. With an uptick in the amount of forest fires, first responders are naturally expected to see an increase in work.

However, some of the wealthier citizens of the Golden State are resulting to the use of private companies hired by insurance companies to avoid having to wait in line to dodge a fire. California now has approximately 14,000 firefighters on the ground that include reinforcements from Australia and American Samoa.

The private firefighters are hired by insurance companies in order to keep fire damages low to prevent payouts by the insurance companies. These private firefighters are fighting what they call mega fires, which some believe will now be a regular occurrence.

Interestingly, this arrangement creates somewhat of a class between those that can afford to pay private firefighters and those who cannot. If you have to wait in line for the public firefighters, then you might have to watch your house go down in flames. Then, you may have to go to a community center while you wait for the insurance companies to make payment on your claim.

However, some of the wealthy are also buying land in other countries so if the worst should happen to them, they could perhaps get on a plane and go somewhere else.

The increased use of private firefighters creates questions for workers’ compensation professionals. Many, if not all states have protections for first responders. In fact, most states have recently increased these protections to cover PTSD.

However, in order to take advantage of the first responder workers’ compensation benefits, you have to be defined by state law as a first responder, whether it is firefighter, police officer, correctional officer, etc. At best, it is unclear in multiple states how these claims are handled. As a matter of policy, should workers’ compensation benefits be any different for first responders regardless of who employs them.

One benefit to publicly-employed first responders is that the prevalence of private firefighters will likely increase their pay. Typically, private companies can afford to pay employees higher salaries because they are not restricted to tax revenue and the state legislature’s authority. But if all the firefighters are signing up to work for private companies, the invisible hand of the market will likely cause public institutions to raise their salaries in order to compete with these private entities.

The next issue that is raised by this phenomenon is the employer/employee relationship between the people who hire these private firefighters and the workers themselves. We know that independent contractors are not entitled to workers’ compensation benefits. The distinction between independent contractors and employees is usually based on the level of control exerted on the worker by the employer.

In this instance, one arrangement could be that the private firefighters are an employee of a private corporation, and the land owner hired that corporation. Then, the insurance company who insures that business will be on the hook for the employee’s injuries.

However, if the land owners hire the private firefighters directly, the facts may start to get more gray. Most people, even if wealthy, are not educated on the complicated methods of how to deal with fires. As a result, in theory, they are probably not capable of exerting that much control over how they do their jobs. This means that there is somewhat of a factual presumption that these workers would be independent contractors and not be entitled to workers’ compensation benefits. If these dreadful fires continue, the legislatures will likely need to address this matter.

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