Opinion Mondays: Anachronistic Longings — the Co-Worker Lunch
As many of you know, as co-author of Larson’s Workers’ Compensation Law, I read — or truth be told, skim — many, many appellate decisions each year. Recently, because of the disruptive nature of the COVID-19 pandemic, I’ve been fascinated by fact patterns that are wonderfully anachronistic. Consider, for example, a recent decision late last week from New York [Matter of Scriven v. Davis Ulmer Sprinkler Co., 2020 N.Y. App. Div. LEXIS 2926 (3d Dept. May 14, 2020)]. The claim involved injuries sustained by an employee in an auto accident that occurred while the employee was riding to an informal lunch with his supervisor. Y’all remember such gatherings, don’t you?
The Case
The facts were straight-forward. In December 2015, the employee/claimant was in the front passenger seat of a vehicle owned and operated by his supervisor when, on their way to lunch, they were in a car accident that caused claimant to sustain various injuries. He thereafter filed a claim for workers’ compensation benefits. Following a hearing, a WCLJ found that claimant’s injuries arose out of and in the course of his employment. A panel of the state’s Board affirmed, prompting the employer and its workers’ compensation carrier to seek full Board review. The full Board accepted review, rescinded the Board panel’s decision and referred the matter to the Board panel for further consideration. The Board panel subsequently disallowed the claim, finding that claimant’s injuries were not compensable because they did not arise out of and in the course of his employment. Claimant appealed.
Lunchtime Injuries
Citing Matter of Baxter v. T.G. Peppe, Inc., 81 AD3d 1109, 917 N.Y.S.2d 366 (2011), the appellate court observed that in New York, lunchtime injuries are generally deemed to occur outside the scope of employment, except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break.
Was the Employee Under the Employer’s Control?
The supervisor testified that on the day of the accident, he invited claimant to lunch with three other co-workers — all of whom he supervised. The supervisor regularly went to lunch with subordinate employees. He explained that he enjoyed the people with whom he worked. They didn’t talk business to any degree during the lunchtime gatherings, but the supervisor admitted that the lunches “promoted camaraderie.”
The supervisor further testified that the claimant was not required to attend the lunch and added that the claimant could have driven his own car, if he so chose. The claimant testified that he believed his presence was obligatory, he largely corroborated the supervisor’s version of events and confirmed that he was not paid during his lunch break. Although he asserted that he sometimes discussed work matters at lunch with the supervisor, he admitted that he did not know whether work would be discussed at lunch that day.
Appellate Court’s Decision
The appellate court held substantial evidence supported the Board’s decision finding that claimant’s injuries did not arise out of and in the course of his employment. The Court had earlier noted the fact-driven nature of the inquiry. It did not say so, but I suspect that had the Board come down in favor of the claimant, the decision would have similarly been affirmed.
Commentary
I have no particular problem with the Court’s decision. I generally applaud when an appellate court reminds us that it isn’t in the fact-finding business. That it might have come to a different conclusion that the Board or Commission is irrelevant.
From an academic standpoint, these sorts of lunchtime injury cases follow the rule prevalent in cases involving recreational injuries that have some tenuous tie to the employment [see Larson, § 22.01, et seq.] Generally speaking, recreational or social activities are generally within the course of employment when:
- They occur on the premises during a lunch or recreation period as a regular incident of the employment; or
- The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or
- The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.
Notice that the focus is on the employer, not the employee. That the employee might get some sort of tangible or intangible benefit is an interesting aside; it is not generally relevant to the issue of compensability.
Many of you will remember the hugely popular self-help business book originally published some 15 years ago — has it actually been that long? — Never Eat Alone, by Keith Ferrazzi. I was put off a bit by the level of Ferrazzi’s personal puffing, but his premise was/is well-taken: Networking is important. One should take advantage even of small lunch-time gatherings to share and learn from others.
A junior employee can often take advantage of the informal lunch to give a supervisor insights into his or her personality, one’s sense of team-play, one’s commitment to the goals of the employer, etc. Again, however, from a workers’ compensation standpoint, that subjective gain on the part of the employee isn’t generally the controlling factor in determining whether an injury sustained during that social gathering is compensable.
I work alone and have done so for years. I have, however, used informal lunch gatherings as a means of cracking through my shell. I’ve been immensely enriched by contact with others around a table. I’ve found there is an inverse relationship between wonderful serendipity and the number of spreadsheets that are open before the group at any given moment in time. I long for the “good ole” days — you know, before late February — when one could sit within, say, three feet of someone and laugh. May those days return to us soon!