EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

Summary of McDonald's Van Ness - DAR

The Division's compliance officer observed a man on an elevated building ledge painting a "McDonald's" sign. Employer's area supervisor told the compliance officer that Employer's operations manager hired the man to paint. The man said the operations manager told him to paint the sign but that his boss "Ali" would pay him. The operations manager testified that the man told him Ali sent the man to do the painting. The operations manager showed the man where to paint--no "high spots" requiring ladder use--and the paint to use. Owner Ali testified that he did not hire the man to paint at the site. The Division alleged a repeat/serious violation of section 1670(a). The Board accepts the ALJ's credibility findings (as opposed to Employer's witnesses) and holds that evidence of Employer's right to control the man's work establishes that he was an employee instead of an independent contractor. The Board says that the six factor employee v. independent contractor test explained in the case of S.G. Borello & Sons, Inc. 48 Cal. 3d 341 is appropriate.

McDonald's Van Ness, 00-1621
September 26, 2001