California Labor Code Section 3351: Who Counts as an Employee

California Labor Code Section 3351 defines an “employee,” for workers’ compensation purposes, as every person in the service of an employer under any appointment, contract of hire, or apprenticeship, whether the arrangement is written or oral, lawful or unlawful.¹ The definition is deliberately broad, and the statute then names six specific categories of workers who are included so there’s no argument about them. A companion section, 3352, lists people who are excluded.

The Six Categories Section 3351 Names

Beyond the general definition, the statute spells out six categories of workers who count as employees for workers’ compensation. Some of these are called out precisely because the employment relationship might look unusual or informal.

Noncitizens and minors. Neither immigration status nor age removes a worker from the system.
Paid elected and appointed public officers.
Officers and directors of private or quasi-public corporations, while performing paid service for the corporation.
Residential domestic workers — anyone employed at a home for its upkeep, childcare, or personal services (subject to a minimum-hours exclusion in Section 3352).
People in state correctional institutions performing assigned work or labor under contract.
Partners in a partnership and members of an LLC who receive wages separate from the business’s profits.

Read alongside Section 3357, which presumes that anyone performing services for another is an employee unless they are an independent contractor or specifically excluded, the practical effect is that doubt breaks in favor of coverage.² The hiring entity carries the burden of proving a worker falls outside the definition.

Opt-Outs for Corporate Officers and Working Partners

Two of the included categories come with a way out. A corporate officer or director who owns at least 10% of the corporation’s outstanding stock (or at least 1% if a close family member owns at least 10% and the officer has health coverage) can sign a written waiver excluding themselves from workers’ compensation coverage.³ General partners and managing LLC members can do the same. The waiver is executed under penalty of perjury and gives up all rights under the employer’s policy for any work-related injury.

Who Section 3352 Excludes

Section 3351’s reach is wide, but Section 3352 pulls certain relationships back out. If you’re checking whether a specific worker is covered, this is where the answer often lives.

Family Working in the Home

A person employed by a parent, spouse, or child in a residential dwelling is excluded.⁴ The carve-out is limited to domestic work at a home. A child working at a parent’s outside business is not excluded on this basis.

Casual Domestic Workers

Residential domestic workers who would otherwise be covered under Section 3351(d) lose that coverage if, during the 90 calendar days before the injury, they worked fewer than 52 hours or earned $100 or less from the employer.⁴ A regular housekeeper or nanny clears both thresholds easily. Someone hired once for a few hours of yard work generally does not.

Volunteers

Most true volunteers are excluded. The statute specifically names volunteers at nonprofit recreational camps, volunteer ski patrollers, volunteers for public agencies and nonprofits, and amateur sports officials for public agencies or nonprofits who receive no more than a $150 stipend per event.⁴ The common thread is that the person receives nothing beyond meals, lodging, transportation, or reimbursement of incidental expenses. Once real compensation enters the picture, the exclusion may no longer apply.

Other Excluded Workers

Deputy clerks and deputy sheriffs appointed for their own convenience who receive no county pay are excluded (though a private-sector job of theirs can still generate a claim). Ski area employees who are off duty and skiing recreationally on their own initiative are excluded during that recreation. And people who provide services to religious, charitable, or relief organizations solely in exchange for aid or basic sustenance are excluded as well.⁴

Employee or Independent Contractor

The most contested question in this area isn’t whether Section 3351’s general definition applies. It’s whether a worker is an employee at all or an independent contractor. Since 2020, Labor Code Section 2775 has answered that question using the ABC test.⁵ A worker is presumed to be an employee unless the hiring entity proves all three of the following:

The worker is free from the hiring entity’s control and direction over how the work is performed, both under the contract and in actual practice.
The work falls outside the hiring entity’s usual course of business.
The worker is customarily engaged in an independently established trade, occupation, or business of the same kind as the work being performed.

All three must be satisfied. Fail on any one prong and the worker is an employee.⁶ The second prong is where most classifications collapse. A delivery company cannot credibly claim its drivers are outside its usual course of business.

Where a court determines the ABC test cannot apply and no statutory exception covers the situation, the older Borello test governs instead. Borello weighs multiple factors, with primary focus on the hiring entity’s control over the manner and means of the work.⁵

Unlicensed Contractors Are Presumed Employees

Labor Code Section 2750.5 adds another layer. If a worker performs work that requires a California contractor’s license but doesn’t hold one, that worker is presumed to be an employee of whoever hired them.⁷ For any trade that requires a license, holding a valid one is a mandatory condition of independent contractor status. No license, no independent contractor classification.

Why the Definition Matters

Once a worker fits Section 3351, Labor Code Section 3700 requires the employer to carry workers’ compensation coverage, either through insurance or approved self-insurance.⁸ There is no minimum employee count. A single employee triggers the obligation.⁹ Coverage pays for medical treatment, temporary and permanent disability benefits, and supplemental job displacement benefits regardless of fault. In exchange, the employer generally cannot be sued in civil court for a work-related injury.

Getting the classification wrong is expensive. Operating without required coverage is a misdemeanor punishable by up to one year in county jail and a fine of at least $10,000 or double the premium avoided, whichever is greater; a second conviction raises the minimum fine to $50,000 or triple the avoided premium.¹⁰ The Division of Workers’ Compensation can issue a stop order halting the use of employee labor and assess $1,500 per employee, with higher amounts if the uninsured period exceeded a week in the prior calendar year.¹¹ An employee injured while working for an uninsured employer keeps the right to file a workers’ compensation claim and also gains the right to sue the employer in civil court, an option normally foreclosed by the workers’ compensation system.

1
California Legislative Information. California Code LAB 3351 – Employee
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California Legislative Information. California Code Labor Code 3357
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California Department of Insurance. Notice Regarding Changes in Definitions of Employee and Exclusions
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California Legislative Information. California Code Labor Code 3352
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California Department of Industrial Relations. Independent Contractor Versus Employee
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California Legislative Information. California Code Labor Code 2775
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California Legislative Information. California Code Labor Code 2750.5
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California Legislative Information. California Code LAB 3700
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California Division of Workers’ Compensation. DWC FAQs for Employers
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California Legislative Information. California Code LAB 3700.5
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California Legislative Information. California Code LAB 3710.1 Through 3732