As summer season brings with it a new class of student workers, employers may be faced with more questions than answers about where summer workers fall along the spectrum of those covered by the Pennsylvania Workers’ Compensation Act (the “Act”).
The Act covers full time, part time, and seasonal employees. The Act defines employees to include “[a]ll natural persons who perform services for another for a valuable consideration, exclusive of … persons whose employment is casual in and not in the regular course of business of the employer.” Some summer employees’ statuses are clearly established by the Act. Employees whose employment is both casual in character and not in their employers’ regular course of business, are classified as casual employees and are not covered. The “regular course of business” means the normal operation that regularly constitutes the business in question. One must distinguish between the regular course of business or the prime income-producing activity of the employer and other operations that may be necessary but are clearly incidental to the enterprise.
Summer employees who are paid and injured while acting in the course and scope of their employment are afforded the same workers’ compensation benefits as year-round paid employees. Unpaid summer workers who are injured while acting in the course and scope of their employment are typically not covered, except in rare instances where they are performing the same duties as paid employees.
Whether one is unpaid depends on whether he or she receives “valuable consideration” in exchange for work. A nominal stipend provided by an employer is not considered “valuable compensation” under the Act. In an unreported decision, a Pennsylvania court deemed a Board of Elections poll worker to be an employee rather than a volunteer where she was paid above federal minimum wage – “valuable consideration” in Pennsylvania. A congregant paid $25.00 per week for maintaining his church’s grounds was also considered to have received “valuable consideration” for the purposes of the Act. Employers must be aware that under the Act, consideration given to summer interns may, depending on the circumstances and amounts, be viewed as “valuable” and lead to liability under the Act.
Moreover, while these rules about seasonal apply regardless of a worker’s age, employers must know that when they employ minors, failure to abide by state employment laws leads to consequences in workers’ compensation payments. If an individual under the age of eighteen is employed in violation of other state laws relating to minors, the individual is entitled to receive an additional fifty percent of the compensation rate as additional compensation to be paid by the employer – not by the insurance carrier. Where an employer knows or reasonably should know that the employee is a minor working illegally and the minor employee is injured in the course and scope of employment, the employer is liable for the additional fifty percent of the compensation rate. Where, however, the employer has, in its possession, a legally issued employment certificate under Child Labor Law or an age certificate for the minor issued by school authorities, a conclusive presumption exists that the minor is employed in accordance with state law; that employer is therefore not liable for the additional fifty percent payment should liability under the Act arise.
The compensation rate would be irrelevant in the case of unpaid minor. Where there is no wage loss, there cannot be lost time benefits. The State of Pennsylvania has suggested, however, that minors working as unpaid interns may be entitled to medical benefits under the Act. In the guidelines provided by the Pennsylvania Office of Administration for high school students hired into the state’s high school internship-related programs, medical benefits are specifically addressed; “unpaid interns…would … be entitled to medical benefits under the Act.”
The same logic may also apply so that private employers and their insurers may be responsible for medical benefits in the case of an injured unpaid summer intern. As employers and students plan for the summer, they should consider the possibility that in certain circumstances, even unpaid student workers may be eligible for some benefits.
77 P.S. § 22.
See Martin v. Recker, 552 A.2d 668 (Pa. Super. 1988), Carpenters’ Joint Apprenticeship Committee v. WCAB (Wisniewski), 654 A.2d 656 (Pa. Cmwlth. 1995), and Industrial Valley Bank & Trust Co. v. WCAB (Tomasetti), 332 A.2d 882 (Pa. Cmwlth. 1975).
Wolf v. WCAB (County of Berks/Office of the Aging), 705 A.2d 843 (Pa. Cmwlth. 1997).
Luzerne County Board of Elections v. WCAB (Heffner) (No. C.D. 2014).
Brookhaven Baptist Church v. WCAB (Halvorson), 590 Pa. 282, 912 A.2d 770 (Pa. 2006)
77 P.S. § 672.
American Belt Co. v. WCAB (Figuereo), 755 A.2d 77 (Pa. Cmwlth. 2000).
77 P.S. § 672.
Workers’ Compensation Information for High School Internships, available at https://www.hrm.oa.pa.gov.