Illinois Court Stresses that Both Loaning and Borrowing Employers are Immune From Tort Liability
In an Illinois personal injury action filed by a temporary worker who had been assigned by a temporary staffing agency to a packaging company, both the “loaning” employer and the “borrowing” employer were entitled to immunity under the exclusive remedy provision of the Illinois Workers’ Compensation Act, held a state appellate court [Torrijos v. International Paper Co., 2021 IL App (2d) 191150, 2021 Ill. App. LEXIS 321 (June 22, 2021)]. The court held that here there were no factual issues to be determined. The employee was exclusively supervised by an employee of the borrowing company. She worked the same hours as the borrowing company’s other employees and there was no evidence that anyone from the loaning agency had even visited the employee’s work site.
Background
Manpower hired plaintiff as a temporary worker on January 15, 2016. Thereafter, Manpower instructed plaintiff to report to International Paper Co.’s (IPC) Aurora plant to interview for a position. Plaintiff interviewed and completed an employment application with IPC. Manpower then assigned plaintiff to work at IPC, beginning January 28, 2016, and instructed plaintiff to report to Javier Cano, an IPC supervisor. Plaintiff’s schedule at IPC was Monday through Friday from 7 a.m. to 3:30 p.m.—the same shift as IPC employees.
Plaintiff testified that, on her first day of work, she met Javier prior to the start of her shift. Javier provided plaintiff with safety equipment—ear plugs, goggles, and gloves. They proceeded to an area outside the cafeteria where “everybody gathered” and Javier gave the daily assignments. Javier instructed plaintiff as to her initial duties. Gradually, plaintiff’s duties expanded, at which point she and another employee began to alternate, with Javier’s approval, the “box stacking” and “feeding” duties at their assigned machine.
Plaintiff testified that no Manpower representative ever came to IPC to supervise her work, that she considered Javier her supervisor, and that Javier was the only person who provided her job assignments. On February 8, 2016, plaintiff sustained serious injuries when her hand was pulled into a flexo-folder-glue machine. She underwent multiple surgeries and claimed permanent disability and disfigurement of her hand. She filed a workers’ compensation claim and received benefits.
Two years later, she filed a civil complaint against IPC and other defendants, alleging that IPC’s negligence had caused or contributed to her injuries. Not germane to the workers’ compensation discussion, the case was removed to federal court, but later remanded. IPC moved for summary judgment on the basis of the Workers’ Compensation Act’s exclusive remedy provision. Plaintiff responded by asserting that there were genuine issues of material fact as to the existence of a borrowed-employee relationship. Plaintiff argued that the evidence established that Manpower retained control over the assignments to its employees and told plaintiff that she was a Manpower employee, there was no evidence to establish the requisite contract of hire between plaintiff and IPC, and IPC and Manpower contractually agreed that temporary employees remained Manpower employees. Following argument, the trial court granted IPC’s motion for summary judgment. Plaintiff appealed.
Both Borrowing and Lending Employers Are Immune
Initially, the Court stressed that regardless of which of the two employers pays the workers’ compensation benefits, the exclusivity provision of the Act immunizes both the borrowing employer and the lending employer from further claims. Here, plaintiff did not dispute that Manpower, a temporary staffing agency that contracted with IPC to provide temporary employees, was a loaning employer under 820 ILCS 305/1(a)(4). The question remained, however, whether IPC was entitled to assert immunity as a borrowing employer under the Act. To evaluate the existence of a borrowed-employee relationship for purposes of the exclusive-remedy defense, the court was required to consider:
- Whether the alleged borrowing employer had the right to direct and control the manner in which the employee performed the work and
- Whether there was an express or implied contract of hire between the employee and the alleged borrowing employer.
The court added that whether a borrowed-employee relationship existed was generally a question of fact. If, however, the facts were undisputed and permitted but a single inference, the question could be resolved as a matter of law.
No Genuine Issue of Fact
The court observed that the facts of the instant case were analogous to those in Holten v. Syncreon North America, Inc., 2019 IL App (2d) 180537, 432 Ill. Dec. 510, 129 N.E.3d 728. As was the case in Holten, the court stressed that there were no genuine issues of material fact with respect to IPC’s direction and control of plaintiff’s work. First, it was undisputed that plaintiff’s daily shift was the same shift as IPC employees. Second, as to supervision and instruction, plaintiff testified that Javier, an IPC employee, was her supervisor and the only individual who assigned plaintiff her daily duties. There was no evidence that anyone at Manpower provided instruction or assistance to plaintiff with respect to her duties at IPC. As for the third factor—the presence of any loaning employer supervisors—plaintiff testified that no Manpower representative ever came to IPC to supervise her work. Plaintiff was not required to report to Manpower before or after her shift.
Implied Contract of Hire
Again, citing Holten, the court stressed that an employee’s consent to the requisite contract of hire with the borrowing employer may be implied in the context of employment by a temporary employment agency. Illinois courts had repeatedly held that a plaintiff’s acceptance of an assignment from a temporary employment agency and awareness that he or she worked for the borrowing employer through the temporary employment agency amounted to implied consent to the borrowed-employee relationship.
Plaintiff’s reference to Manpower’s employee handbook in which it was stated that “Manpower is your employer,” was to no avail. The court said plaintiff had missed the point. To be a borrowed employee, a plaintiff must, in the first instance, be an employee of another entity. Here, plaintiff being told that she would remain a Manpower employee was consistent with the existence of a borrowed-employee relationship. The trial court’s summary judgment in favor of IPC was, therefore, affirmed.