CA: Fighting Fire, Sometimes Without a Work Comp Safety Net

01.03.2018


By Liz Carey

Ventura, CA (WorkersCompensation.com) – Despite the dangers firefighting holds, many of the firefighters battling California’s three wildfires aren’t covered by workers’ compensation.   

As the Thomas wildfire and two other fires in Southern California rage across more than 245,000 acres of land, many of the firefighters are volunteers and prison inmates.

And some of the firefighters are workers for contractors hired by the state and are dependent upon their employers for getting workers’ compensation insurance, and identifying them as employees, instead of contractors.

Inmate labor constitutes about a third of the state’s firefighting force. Inmates are paid $1.50 an hour, and given time off of their sentence. In exchange, they are sent to some of the most dangerous areas of the fire.

While many of the inmates may join the force to find a bit of freedom from incarceration, the risks are great. Inmates are often on the front lines of the defense, cutting firebreaks, or trenches cleared of organic material to starve a fire and redirect or control it.

It’s not safe work. So far, two inmates have died fighting California wildfires in 2017 – Matthew Beck, 26, who was killed by a falling tree, and Frank Anaya, 22, fatally wounded by a chainsaw.

“Obviously this is not something that everyone is willing to volunteer for,” said Bill Sessa, a California Department of Corrections and Rehabilitation spokesman who spoke with The Atlantic. “We’ve always been limited by the number of inmates who were willing to volunteer for the project.”

Sessa said the advantages to the inmates are numerous — “You’re more out in the open, you’re not behind an electrified fence,” he told the Atlantic. “It’s perhaps a little more welcoming for family visits than going through the electric detectors inside a prison. They get paid well by prison standards. They eat better by prison standards. They also get to accelerate time off their sentence faster than other inmates do.”

And their service saves the state as much as $100 million in wages and benefits. The $1.50 an hour pales in comparison to the median wage for firefighters in California of $31.85 per hour.

Peter Melton, a spokesman for the CA Division of Industrial Relations told WorkersCompensation.com that the inmates would be covered by the state’s workers’ compensation program if they were engaged to fight the fires.

“All employers in California must provide workers’ compensation benefits to their employees under Labor Code section 3700, with very few exceptions,” Melton said. “Inmates are covered by workers’ compensation while engaged in assigned work such as firefighting. Contractors as employees are also covered.” 

The state also hires companies to provide it with contract labor to fight the fires. It’s up to the companies to provide workers’ compensation to its employees.

A spokesperson with Cal Fire said it requires all of its vendors to have workers’ compensation insurance, unless the company does not have any employees outside of the owners’ family, in which case, they are required only to have major medical insurance.

According to KQED, at least three small firms contracted to provide equipment and workers to fight the fire turned out not to have workers’ compensation coverage. The companies all had workers who were killed battling the fire, when they were exposed as not having the required coverage.

Without those benefits, KQED reported, relatives of the deceased are left with few options.

State workplace regulators say families of those whose firms fail to get workers’ comp policies can sue the employers and file claims for death benefits with the Workers’ Compensation Appeals Board. 

In November, an administrative hearing officer rejected an attempt to reverse penalties against Tehama Transport after determining it failed to carry workers’ compensation insurance. The company was fined when regulators determined the company didn’t have the required insurance, following the death of Garrett Paiz, 38, who was employed by the company to battle the Nuns Fire in Napa County in October. Paiz died when his water tanker overturned.

Tehama Transport argued its operators were not employees, but independent contractors, not subject to workers’ compensation coverage.

Pattie Huber, the administrative hearing officer for the California Labor Commissioner’s Office, said the company was in violation of the state’s requirement to provide coverage, because the firm’s workers qualified as employees since the company could fire them at will, and that there was no evidence that the company’s workers believed they were independent contractors.

Melton said the Division of Workers’ Compensation handles claims when there is a dispute.

“DWC handles disputed claims. Workers’ compensation claims go through the employer and if there are no disputes DWC does not need to be involved,” Melton said.


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