Louisiana Temp Worker Injured Two Hours After Reporting for Work May Not Sue Borrowing Employer in Tort

A Louisiana appellate court reversed a decision by a state trial court that had denied a corporate defendant’s motion for summary judgment in a negligence action filed against it by a worker who sustained an injury to her fingers two hours after beginning her work at the defendant’s facility [Bourque v. Tony Chachere’s Creole Foods of Opelousas, 20-371 (La.App. 3 Cir. 10/28/20), 2020 La. App. LEXIS 1559]. Finding that at least eight of the 10 factual inquiries as to borrowed employee status favored the defendant, the appellate court found the plaintiff’s civil action was barred by the exclusive remedy provisions of the Louisiana Workers’ Compensation Act.

Background

The defendant corporation entered into a staffing agreement with FC Staffing, Inc. (Flexicrew), a labor staffing company, to provide workers at its warehouse. Plaintiff was hired by Flexicrew and assigned to defendant’s facility. On her first day of employment, Plaintiff claimed her hand was injured when the leg of a plastic table was closed on top of her fingers by a Mr. Trahan, one of defendant’s employees. Plaintiff returned to the plant floor, however, completed her shift, and returned to work the rest of the week and part of the next week. Plaintiff subsequently applied for and was granted workers’ compensation disability based on the alleged injury she received to her hand on her first day of work.

She sued the defendant and Trahan, alleging that her injury was caused by Trahan’s negligence and that defendant was vicariously liable for the tort of its employee. The defendant and Trahan filed a motion for summary judgment, contending that Plaintiff was defendant’s borrowed employee and accordingly, could not sue in tort. The trial court denied the motion, finding genuine issues of material fact existed as to: (1) whether the time Plaintiff was on the job—only 45 minutes to an hour-and-a-half before her accident—was a considerable length of time; (2) whether the corporate defendant was Plaintiff’s statutory employer; (3) whether Plaintiff acquiesced in the new work situation when she had not yet started working that day and was unaware of how many hours per week she would work or if she was full time or part time; (4) whether the corporate defendant was classified as a principal under La.R.S. 23:1032; and (5) whether the corporate defendant had a statutory relationship with Flexicrew. Defendant and Trahan appealed.

Appellate Court Decision

Initially, the appellate court, citing Perry v. Perry & Sons Vault & Grave Service, 03-1519, p. 8 (La.App. 3 Cir. 5/12/04), 872 So.2d 611, 617, enumerated the ten factual inquiries underlying borrowed employment status:

1. Who has the right of control over the employee beyond the mere suggestion of details or cooperation;
2. Who selected the employee;
3. Who paid the employee’s wages;
4. Who had the right to fire the employee;
5. Who furnished the tools and the place to perform the work;
6. Was the new employment over a considerable length of time;
7. Whose work was being done at the time of the accident;
8. Was there an agreement between the borrowing and lending employers;
9. Did the employee acquiesce in the new work situation; and
10. Did the original employer terminate his relationship with or relinquish his control over the employee.

The court stressed that no single factor was decisive, and no fixed test was used to determine the existence of a borrowed servant relationship. According to the appellate court, Plaintiff conceded that the corporate defendant had established that eight of the ten factual inquiries underlying borrowed employment status weighed in its favor, but she argued that the uncontested facts supported a finding in her favor as to whether the new employment was over “a considerable length of time” and whether she acquiesced to the work situation.

Plaintiff argued that the disputed facts as to the factual issue of acquiescence included (1) whether she was advised as to the type of job she would do when assigned to the corporate defendant, and whether she was told how many hours per week she would work, or whether the position would be part time or full time; (2) whether she knew she could move if she determined she did not like the work environment; (3) whether she was told at orientation that she would do different things each day and each week; and (4) whether at the time she was injured, she had begun her work duties of packaging giftboxes and whether she had the time or opportunity to evaluate her work environment, personnel, or job duties or decide whether she would have continued working there.

As to factor 6, the appellate court indicated Plaintiff signed on with Flexicrew specifically to be a borrowed employee of the corporate defendant. Whether she was injured on her first day, in the second hour of her employment, was of no consequence. She had been hired to work exclusively at the corporate defendant’s facility. This factor did not, therefore, support her position.

As to factor 9, the court said there was no dispute that Plaintiff agreed to work for the corporate defendant exclusively and was instructed by Flexicrew to report to the warehouse in Opelousas. Upon her arrival, Plaintiff attended orientation, accepted the job, and did not ask Flexicrew to place her in another position. After the alleged accident she continued her work at full duty for the rest of the day, the remainder of the week and part of the next week. Plaintiff’s deposition testimony reflected that she made five active attempts to continue working at modified duty the following week, speaking with, and leaving messages for her supervisor. The court concluded, therefore, that Plaintiff not only acquiesced in her employment, she sought out additional hours at modified duty from the corporate defendant.

Considering the totality of the circumstances, the court held that Plaintiff, as a matter of law, was a borrowed servant of the corporate defendant, having met all 10 enumerated factors in Perry. The defendants were entitled to summary judgment.