California Civil Jury Instructions (CACI)

2924. Status as Defendant's Employee - Subservant Company

[Name of plaintiff] claims [he/she/[name of decedent]] was [name of defendant]'s employee because [he/she] was employed by [name of primary employer], a company that was controlled by [name of defendant]. To succeed, [name of plaintiff] must prove that [name of defendant] controlled or had the right to control the daily operations of [name of primary employer]. Sharing information or coordinating efforts between two companies, by itself, is not enough to establish the right to control.

In deciding whether [name of defendant] controlled [name of primary employer], you should consider the following:

(a) Did the two companies share directors or management-level officers?

(b) Did the two companies share strategies, policies, sales, administrative, and operating staffs?

(c) Did the two companies share payroll and personnel records?

(d) Did [name of defendant] have a right to participate in the [name of primary employer]'s day-to-day operations?

(e) Did [name of defendant] establish [name of primary employer]'s work procedures?

(f) [Insert other applicable factor.]

A "yes" answer to one or more of these questions suggests that the right to control exists. "No" answers suggest that the right to control does not exist. You should consider the relative importance of each factor and not simply count the number of "yes" and "no" answers. Remember that the ultimate test is the right to control.

Sources and Authority

"In the Kelley case, the Supreme Court recognized that if a second company could be shown to be a conventional common-law servant, the 'control or right to control' test would be met." (Bradsher v.

Missouri Pacific Railroad (8th Cir. 1982) 679 F.2d 1253, 1257-1258, internal citation omitted.)

"Under the FELA the test of employee status is whether [defendant railroad] had control or the right to control [plaintiff] in the performance of his job. Where the evidence of control is in dispute, the case should go to the jury." (Vanskike v. ACF Industries, Inc. (8th Cir. 1981) 665 F.2d 188, 198, internal citations omitted.)

"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 v. Southern Pacific Co. (1974) 419 U.S. 318, 330 [95 S.Ct. 472, 42 L.Ed.2d 498].)

(New September 2003)