California Civil Jury Instructions (CACI)

2923. Borrowed Servant/Dual Employee

[[Name of plaintiff] claims [he/she[name of decedent]] was [name of defendant]'s employee at the time of the incident even though [he/ she] was primarily employed by [name of primary employer].]

[[Name of plaintiff] claims [he/she[name of decedent]] was employed by both [name of defendant] and [name of primary employer] at the time of the incident.]

In deciding whether [name of plaintiff/decedent] was [name of defendant]'s employee, you must first decide whether [name of defendant] had the right to control the work of [name of plaintiff/ decedent], rather than just the right to specify the result. It does not matter whether [name of defendant] exercised the right to control. Sharing information or coordinating efforts between employees of two companies, by itself, is not enough to establish the right to control.

If you decide that [name of defendant] did not have the right of control, then you must consider all the circumstances in deciding whether [name of plaintiff/decedent] was [name of defendant]'s employee. The following factors, if true, may show that [name of plaintiff/decedent] was the employee of [name of defendant]:

(a) [Name of defendant] supplied the equipment, tools, and place of work;

(b) [Name of plaintiff/decedent] was paid by the hour rather than by the job;

(c) The work being done by [name of plaintiff/decedent] was part of the regular business of [name of defendant];

(d) [Name of defendant] had the right to end its relationship with [name of plaintiff/decedent];

(e) The work being done by [name of plaintiff/decedent] was [his/her] only occupation or business;

(f) The kind of work performed by [name of plaintiff/decedent] is usually done under the direction of a supervisor rather than by a specialist working without supervision;

(g) The kind of work performed by [name of plaintiff/decedent] does not require specialized or professional skill;

(h) The services performed by [name of plaintiff/decedent] were to be performed over a long period of time;

(i) [Name of defendant] and [name of plaintiff/decedent] acted as if they had an employer-employee relationship;

(j) [Name of plaintiff/decedent]'s duties to [name of defendant] were only for its benefit;

(k) [Name of plaintiff/decedent] consented to the employment with [name of defendant].

Directions for Use

Read the first bracketed paragraph for cases raising the borrowed-servant theory. Read the second bracketed paragraph for cases involving dual employment.

It may not be necessary to read all of the listed factors. Read only the factors for which evidence exists.

Sources and Authority

"Under common-law principles, there are basically three methods by which a plaintiff can establish his 'employment' with a rail carrier for FELA purposes even while he is nominally employed by another. First, the employee could be serving as the borrowed servant of the railroad at the time of his injury. Second, he could be deemed to be acting for two masters simultaneously. Finally, he could be a subservant of a company that was in turn a servant of the railroad." (Kelley v. Southern Pacific Co. (1974) 419 U.S. 318, 324 [95 S.Ct. 472, 42 L.Ed.2d 498], internal citations omitted.)

"[A] finding of agency is not tantamount to a finding of a master-servant relationship." (Kelley, supra, 419 U.S. at p. 325.)

"In this case . . . the evidence of contacts between Southern Pacific employees and PMT employees may indicate, not direction or control, but rather the passing of information and the accommodation that is obviously required in a large and necessarily coordinated operation. The informal contacts between the two groups must assume a supervisory character before the PMT employees can be deemed pro hac vice employees of the railroad." (Kelley, supra, 419 U.S. at p. 330.)

" 'Employee' status is established by 'proof of a master-servant relationship' under principles of common law." (Dixon v. CSX Transportation Co. (4th Cir. 1993) 990 F.2d 1440, citing Kelley, supra, 419 U.S. at p. 323.)

"The special employment relationship and its consequent imposition of liability upon the special employer flows from the borrower's power to supervise the details of the employee's work. Mere instruction by the borrower on the result to be achieved will not suffice." (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492 [162 Cal.Rptr. 320, 606 P.2d 355].)

Contract terms are not conclusive evidence of the existence of the right to control. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 176 [151 Cal.Rptr. 671, 588 P.2d 811].)

"With respect to the dual servant doctrine, the Second Restatement of Agency [section 226] says: 'A person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other.'. . .The borrowed servant doctrine states: 'A servant directed or permitted by his master to perform services for another may become the servant of such other in performing such services. He may become the other's servant as to some acts and not as to others.' " (Williamson v. Consolidated Rail Corp. (3d Cir. 1991) 926 F.2d 1344, 1349, internal citations omitted.)

Restatement Second of Agency, section 220(1), defines a servant as "a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control." Section 220(2) lists various factors that are helpful in applying this definition:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business.

"While [section 220] is directed primarily at determining whether a particular bilateral arrangement is properly characterized as a master-servant or independent contractor relationship, it can also be instructive in analyzing the three-party relationship between two employers and a worker." (Kelley, supra, 419 U.S. at p. 324.)

"The Supreme Court has held that a person falls within FELA if that worker can be classified as a joint employee of the railroad even though it is not his formal employer." (Bradsher v. Missouri Pacific Railroad (8th Cir. 1982) 679 F.2d 1253, 1257.)

"[U]nder the FELA a worker can be the 'employee' of a railroad even though carried on the employment rolls of another company and paid by that other company. The test of employment is the established test in workers' compensation cases. It is whether the railroad has control of the employee or the right to control the employee. The law does not require that the railroad have full supervisory control. It requires only that the railroad, through its employees, plays 'a significant supervisory role' as to the work of the injured employee. (Lindsey v. Louisville & Nashville Railroad Co. (5th Cir. 1985) 775 F.2d 1322, 1324, internal citation omitted.)

(New September 2003)