The issue of injuries within the scope of employment is not always black and white. Two concepts have somewhat complicated the matter: the borrowed employee and joint employment. Under the borrowed employee doctrine, a permanent employer may loan an employee to another, temporary employer. While under the temporary’s employ, the employee’s actions are that of the temporary employer. This doctrine means that if an employee is injured while working for the temporary employee, the questions regarding scope of employment apply only to the temporary employer. If the injury falls within the scope of the temporary employment, then the temporary employer may invoke workers’ compensation as an affirmative defense to tortious liability.
Figuring out whether an employee is borrowed or not is not always easy. Several questions can be asked to help classify the employment: Who has control over the employee? Who is paying the employee’s wages? Who has the right to terminate the employment? Who furnished the necessary tools and location for the employee’s work? How long was the temporary employment? Whose work was being done at the time of the injury? Was there an agreement between the permanent and temporary employers? Did the employee agree to the new temporary employment? Did the permanent employer relinquish control over the employee? The answers to these questions should paint a clear picture of whether or not the employee was in fact a borrowed employee. As in the Herbert case, if an employee agrees to do work for a temporary employer only because he is afraid of being fired by his permanent employer for refusal and is paid by the regular employer, then the employee has not fully acquiesed to the new job and the permanent employer has not relinquished control over the employee; it is still responsible for paying the employee’s wages. If this were the case, an injury that occurred while conducting the temporary employer’s work would fall outside the scope of employment because the employee is not a borrowed employee and the work would not be consistent with typical work conducted by the employee for the permanent employer. However, remember that the answer to each question proposed above is not determinative but rather should be analyzed within the totality of the circumstances.
In Herbert v. Richards, the court found that because GMI had no payroll, no equipment, and no contracts for leased land where the deer netting took place, the company was not an entity separate from Industrial. Since GMI was not a separate entity, it was not possible for GMI to have borrowed Mr. Herbert from Industrial. Thus, the court of appeals reversed the trial court’s grant of summary judgment in favor of Defendants with regards to the issue of borrowed employee status.
The second concept to keep in mind is “joint employment.” Joint employment occurs when two or more employers work together under a common enterprise and control an employee for the benefit of all the employers. It is important to distinguish joint employment from a borrowed employee. If an individual is injured while a borrowed employee, a suit may still exist against either the permanent employer or the temporary employer. However, if an injury occurs during joint employment and the activity that caused that injury is found to be within the scope of that employment, then all joint employers will be immune from tort liability through each employer’s workers compensation insurance. In order to distinguish the two concepts, revisit the questions posed above. If the answer to several of the questions is more than one employer, than there is a likelihood that there was joint employment. In the Herbert case, the court simply points out that joint employment is a possibility because Industrial provided resources, such as helicopters, that could be argued to have made the excursion a joint effort for the benefit of both companies. The issue was remanded to the trial court.
While the court of appeal’s ruling on the scope of employment helped clarify the issue, it still had to deal with Mr. Herbert’s alternative arguments.