Pennsylvania Borrowed Employee May Not Sue Borrowing Employer In Tort
Construing the so-called “borrowed employee” doctrine, the Superior Court of Pennsylvania stressed that where a worker employed by one company is furnished by that company to perform work for another company, the latter company is the worker’s employer under the state’s Workers’ Compensation Act (WCA) if it has the right to control the worker’s work and the manner in which the work is done [Burrell v. Streamlight, Inc., 2019 Pa. Super. LEXIS 1110 (Nov. 7, 2019), emphasis added]. Accordingly, where the plaintiff in the instant civil action had been hired by a recruiting agency sustained injuries in a fall at the premises of the defendant company, to whom the plaintiff had been assigned, the plaintiff could not sue the defendant in tort; the claim was barred by the exclusive remedy rule.
Background
Plaintiff, was injured on the premises of Streamlight, Inc. (Defendant) on when he fell during his work shift while disposing of trash in the trash compactor at Defendant’s facility. Plaintiff was a temporary worker hired by Aerotek, Inc. (Aerotek), a recruiting agency, and was placed by Aerotek to work for Defendant as a temporary worker at Defendant’s facility.
Plaintiff, who had received workers’ compensation benefits for his injury, filed suit against Defendant, alleging his injuries had been caused by a dangerous condition at Defendant’s facility. Defendant contended it was immune from suit under the WCA because Plaintiff was acting as Defendant’s employee or borrowed employee at the time of the accident. The trial court granted Defendant’s motion for summary judgment on the ground that Defendant was Plaintiff’s employer under the borrowed employee doctrine and, therefore, was immune from suit under the WCA.
Borrowed Employee Doctrine Test
The Superior Court noted that the test for whether a company is the worker’s employer under the borrowed employee doctrine is well established:
The test for determining whether a servant furnished by one person to another becomes the employee of the person to whom he is loaned is whether he passes under the latter’s right of control with regard not only to the work to be done but also to the manner of performing it. The entity possessing the right to control the manner of the performance of the servant’s work is the employer, irrespective of whether the control is actually exercised. Other factors which may be relevant include the right to select and discharge the employee and the skill or expertise required for the performance of the work. The payment of wages may be considered, but is not a determinative factor. Although the examination of these factors guides the determination, each case must be decided on its own facts [JFC Temps, Inc. v. WCAB (Lindsay), 545 Pa. 149, 680 A.2d 862, 864 (Pa. 1996)].
Right to Control
While it was certainly true that Plaintiff had been initially hired by Aerotek, had been assigned to Defendant by Aerotek, was paid by Aerotek, the controlling issue was whether Plaintiff had been under the control of Defendant. Taking out the trash was within Plaintiff’s duties with Defendant. Indeed, Plaintiff admitted that he had been directed by Defendant to take the trash to the compactor at the time he sustained his injuries. The accident occurred during normal work hours and was within the course and scope of Plaintiff’s employment. The Superior Court stressed that a review of Plaintiff’s Answers to Defendant’s Interrogatories clearly indicated Defendant had the right to direct and control Plaintiff’s work. There was no claim that at the time of injury, Plaintiff had been acting under Aerotek’s direction or supervision. The undisputed facts established that Defendant was Plaintiff’s employer under the WCA and, therefore, immune from suit.