Washington Special Employers May Not Be So “Special” After All
Court Says Issue of Fact Existed as to Whether Worker “Consented” to Special Employment Status.
In a decision that could alter the way some labor brokers manage their businesses within the state of Washington, and which could have broad implications even beyond that state’s boundaries, a state appellate court reversed the summary dismissal of a tort action filed against a general contractor following a workplace accident by the employee of a labor broker who had been assigned to the general contractor [Saling v. Gaither & Sons Constr., Co., 2019 Wash. App. LEXIS 2393 (Sept. 16, 2019)]. The Court ruled that in spite of contract provisions to the contrary between the plaintiff worker and the labor broker, the plaintiff had raised a factual issue as to whether he had consented that the general contractor be considered his special employer.
Background
In February 2015, the plaintiff was injured while working at a construction site at which Gaither was the general contractor. The plaintiff and his uncle (Pittman) had been assigned to work at the site by their employer, Labor Ready, a company that Gaither used to provide temporary workers. The work consisted of moving stacks of doors to door frames throughout the building that Gaither was in charge of constructing. During the work that day, a stack of doors fell on the plaintiff, causing injuries.
Plaintiff Received Workers’ Compensation Benefits
Following the injury, the plaintiff applied for and received workers’ compensation benefits via the Washington Department of Labor and Industries (L&I), which accepted the claim and assigned it to Labor Ready. The plaintiff subsequently filed a negligence action against Gaither, which argued that it was immune from common law liability because it was the plaintiff’s “special employer.”
Plaintiff’s Agreement with Labor Ready
Gaither pointed out that the plaintiff had signed an agreement with Labor Ready in which the plaintiff specifically acknowledged and consented that Labor Ready’s customer—in this case, Gaither—was the plaintiff’s special employer. Gaither also pointed to a clause in the plaintiff’s agreement with Labor Ready that acknowledged that the latter’s customer directed, controlled, and supervised the work to be done.
Gaither pointed to another provision in the plaintiff’s contract with Labor Ready in which the plaintiff acknowledged that his sole remedy for on the job injuries would be workers’ compensation benefits. Within that provision, the plaintiff waived any claim that he (or his heirs) might have against the special employer.
The trial court granted Gaither’s motion for summary judgment based upon its finding that Gaither was the plaintiff’s special employer.
Two-Pronged Inquiry
The appellate court noted that determining whether Gaither was the plaintiff’s special employer involved a two-pronged inquiry since an employment relationship existed only when:
- The employer has the right to control the servant’s physical conduct in the performance of his or her duties, and
- There is consent by the employee to the relationship.
As to the first element, the Court indicated that it was clear that Gaither had the right and indeed did exercise control over the plaintiff’s actions at the worksite. As to the second, however, the Court agreed that there was a genuine issue of material fact as to whether the plaintiff consented to an employment relationship with Gaither.
The Court looked back to the seminal case on the consent issue, Fisher v. City of Seattle, 62 Wn.2d 800, 384 P.2d 852 (1963) in which the state Supreme Court, quoting Larson’s Workers’ Compensation Law [former § 47.10, current § 64.01], had stated that to “thrust upon a worker an employee status to which he has never consented … might well deprive him of valuable rights under the compensation act, notably the right to sue his own employer for common law damages.”
The Court pointed to its own earlier decision in Rideau v. Cort Furniture Rental, 110 Wn. App. 301, 39 P.3d 1006 (2002), in which, following an injury, the worker testified that he did not believe that the defendant was his employer or that he was the defendant’s employee, and that he only considered the labor broker his employer. The Court in the instant case saw the same fact pattern here. As in Rideau, the Court said there was a factual issue as to whether the plaintiff here had ever actually consented to the employment relationship with Gaither.
No Contract Between Plaintiff and Gaither
The Court stressed that the record contained no contractual agreement between Labor Ready and Gaither, much less one that mentioned an agreement between Gaither and the plaintiff. The lack of such an agreement weighed against imputing consent as a matter of law. The Court also stressed that this was not a breach of contract case. In any event, while the language in a contract (this one was between the plaintiff and Labor Ready) was important, it did not always control.
Since a factual issue existed as to whether the plaintiff had consented to be treated as the employee of Gaither, the matter could not be disposed of, as it had been, at the summary judgment level.
Comment
What is the putative special employer to do in Washington (or elsewhere, for that matter)? One thought might be some sort of contractual session prior to the beginning of work in which the worker, in exchange for some valuable consideration, agrees to be considered the special employee of the employer who is to control his or her work. What do you, the reader, think?