Understanding Concurrent Employment in California Workers' Compensation: Timing Matters

Introduction

When calculating workers' compensation benefits in California, one of the most critical factors is determining an injured worker's average weekly earnings (AWE). For employees who work multiple jobs, understanding how concurrent employment affects these calculations can make a significant difference in benefit amounts. This blog explores the timing requirements for concurrent employment and how they impact workers' compensation benefits.

 

What Qualifies as Concurrent Employment?

Concurrent employment occurs when an employee works for two or more unrelated employers. Under LC § 4453(c)(2) , concurrent employment doesn't necessarily mean working multiple jobs simultaneously in the same day. It includes situations where an employee:

  • Works a full-time job and a part-time job

  • Has day and night positions

  • Works weekday and weekend jobs

For employment to be considered "concurrent," three key elements must be present:

  1. The employers must act independently of each other

  2. There must be separate and individual employment relationships

  3. The employee's duty to one employer cannot be dependent on their duty to serve the other

The Critical Timing Requirement: Must Be Employed at Date of Injury

Here's the crucial point that many injured workers and even some claims administrators miss: concurrent employment must be present at the date of injury to be counted for average weekly earnings calculations.

This requirement was firmly established in the case of Elliot v. WCAB (1987), where the court ruled that LC § 4453(c)(2) was inapplicable when an employee had been laid off by another employer 10 days before her injury. The court determined that two or more employment relationships must exist at the time of injury for this subsection to apply.

What About Past or Future Employment?

  • Past employment that ended before the date of injury cannot be included in AWE calculations under LC § 4453(c)(2).

  • Future employment or jobs obtained after the injury generally cannot be considered either. The focus is on the employee's earning capacity at the time of injury, not what happens afterward.

Exception for Part-Time Employees

There is one notable exception to the timing rules: part-time employees. Under LC § 4453(c)(4) , when an employee works less than 30 hours per week at the time of injury, post-injury earnings may be considered to determine their true earning capacity.

This exception was established in the California Supreme Court case of Goytia v. WCAB (1970), which held that the appeals board must consider post-injury earnings in cases involving part-time employees.

 

How Concurrent Employment Affects Benefit Calculations

When concurrent employment is properly established, the calculation method depends on which job the injury occurred:

  1. Injured on the job with the highest hourly rate: Add all earnings from all jobs to determine AWE.

    Example: If Diane works a full-time job earning $600/week ($15/hour) and a part-time job earning $84/week ($12/hour), and is injured on the full-time job, her AWE would be $684.

  2. Injured on a job with a lower hourly rate: Multiply the hourly rate for the job where the injury occurred by the total hours worked each week in all employments.

    Example: If Cheryl works 40 hours/week at $12/hour ($480/week) and is injured on a part-time job where she works 20 hours/week at $10/hour ($200/week), her AWE would be $10/hour × 60 hours = $600.

Documentation Requirements

Employees claiming concurrent employment must provide:

  • Information about earnings from all employers

  • Names and addresses of all employers

  • Authorization forms for release of earnings information

  • Possibly income tax returns (personal information can be redacted)

Conclusion

Timing is everything when it comes to concurrent employment in California workers' compensation cases. To maximize benefits, injured workers must understand that concurrent employment must exist at the time of injury, and they must be prepared to document these employment relationships properly.

For employers and claims administrators, careful investigation of concurrent employment claims is essential to ensure accurate benefit calculations and avoid potential penalties for underpayment.

Understanding these timing requirements can help all parties navigate the complex world of workers' compensation with greater clarity and confidence.