CACI No. 3706. Special Employment - Lending Employer Denies Responsibility for Worker’s Acts

Judicial Council of California Civil Jury Instructions (2020 edition)

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3706.Special Employment - Lending Employer Denies
Responsibility for Worker’s Acts
When one employer sends or loans an employee to work for another
employer, a special employment relationship may be created that affects
the duties and responsibilities between the two employers and the
employee. The arrangement may be temporary with a determined ending
date or event; or it may be open-ended. In this situation, the borrowing
employer is known as a “special employer” and the employee is referred
to as a “special employee.”
[Name of plaintiff] claims that [name of worker] was the employee of
[name of defendant lending employer] when the incident occurred, and
that [name of defendant lending employer] is therefore responsible for
[name of worker]’s conduct. [Name of defendant lending employer] claims
that [name of worker] was the special employee of [name of defendant
borrowing employer] when the incident occurred, and therefore [name of
defendant borrowing employer] is solely responsible for [name of worker]’s
conduct.
In deciding whether [name of worker] was [name of defendant borrowing
employer]’s special employee when the incident occurred, the most
important factor is whether [name of defendant borrowing employer] had
the right to fully control the details of the work activities of [name of
worker], rather than just the right to specify the result. It does not
matter whether [name of defendant borrowing employer] actually exercised
the right to control.
In addition to the right to control, you must consider all the
circumstances in deciding whether [name of worker] was [name of
defendant borrowing employer]’s special employee when the incident
occurred. The following factors, if true, may tend to show that [name of
worker] was the special employee of [name of defendant borrowing
employer]. No one factor is necessarily decisive. Do not simply count the
number of applicable factors and use the larger number to make your
decision. It is for you to determine the weight and importance to give to
each of these additional factors based on all of the evidence.
(a) [Name of defendant borrowing employer] supplied the equipment,
tools, and place of work;
(b) [Name of worker] was paid by the hour rather than by the job;
(c) The work being done by [name of worker] was part of the regular
business of [name of defendant borrowing employer];
(d) [Name of defendant borrowing employer] had the right to terminate
[name of worker]’s employment, not just the right to have [him/
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her/nonbinary pronoun] removed from the job site;
(e) [Name of worker] was not engaged in a distinct occupation or
business;
(f) The kind of work performed by [name of worker] 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 worker] does not require
specialized or professional skill;
(h) The services performed by [name of worker] were to be performed
over a long period of time;
(i) [Name of defendant lending employer] and [name of defendant
borrowing employer] were not jointly engaged in a project of
mutual interest;
(j) [Name of worker], expressly or by implication, consented to the
special employment with [name of defendant borrowing employer];
[and]
(k) [Name of worker] and [name of defendant borrowing employer]
believed that they had a special employment relationship[./;] [and]
(l) [Specify any other relevant factors.]
New September 2003; Revised June 2013, December 2015, December 2016
Directions for Use
This instruction is for use in “special employment” cases. Special employment arises
when a worker has been loaned from one employer to another, and there is an issue
as to which employer the worker should be attributed with regard to the claim in the
case. The borrowing employer is called the “special” employer. The lending
employer is sometimes called the “general” employer, though use of that term may
be confusing to a jury.
The instruction as drafted is for use by the lending employer to claim that the
worker should be considered as the special employee of the borrowing employer.
This would be the case if the issue is which employer is responsible for the
worker’s tortious conduct under respondeat superior. The instruction may be
modified if the claim is for injury to the worker, and the borrowing employer wants
to claim the worker as its own in order to take advantage of the exclusive remedy
bar of workers’ compensation. This instruction is not for use by the worker to claim
employment rights under the Labor Code, though many of its provisions will likely
be applicable.
In addition to the borrowing employer’s control over the employee, there are a
number of relevant secondary factors to use in deciding whether a special
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employment relationship existed. They are similar, but not identical, to the factors
from the Restatement Second of Agency, section 220 to be used in an independent
contractor analysis. (See State ex rel. Dept. of California Highway Patrol v. Superior
Court (2015) 60 Cal.4th 1002, 1013-1014 [184 Cal.Rptr.3d 354, 343 P.3d 415];
CACI No. 3704, Existence of “Employee” Status Disputed; see also Marsh v. Tilley
Steel Co. (1980) 26 Cal.3d 486, 492 [162 Cal.Rptr. 320, 606 P.2d 355]; Kowalski v.
Shell Oil Co. (1979) 23 Cal.3d 168, 176-177 [151 Cal.Rptr. 671, 588 P.2d 811].) In
the employee-contractor context, it has been held to be error not to give the
secondary factors. (See Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 303-304 [111
Cal.Rptr.3d 787].)
Sources and Authority
• “[W]here the servants of two employers are jointly engaged in a project of
mutual interest, each employee ordinarily remains the servant of his own master
and does not thereby become the special employee of the other.” (Marsh,supra,
26 Cal.3d at p. 493.)
• “When an employer - the ‘general’ employer - lends an employee to another
employer and relinquishes to a borrowing employer all right of control over the
employee’s activities, a ‘special employment’ relationship arises between the
borrowing employer and the employee. During this period of transferred control,
the special employer becomes solely liable under the doctrine of respondeat
superior for the employee’s job-related torts.” (Marsh, supra, 26 Cal.3d at p.
492.)
• “The law of agency has long recognized that a person generally the servant of
one master can become the borrowed servant of another. If the borrowed servant
commits a tort while carrying out the bidding of the borrower, vicarious liability
attaches to the borrower and not to the general master.” (Societa per Azioni de
Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 455-456 [183
Cal.Rptr. 51, 645 P.2d 102], internal citations omitted.)
• “Liability in borrowed servant cases involves the exact public policy
considerations found in sole employer cases. Liability should be on the persons
or firms which can best insure against the risk, which can best guard against the
risk, which can most accurately predict the cost of the risk and allocate the cost
directly to the consumers, thus reflecting in its prices the enterprise’s true cost of
doing business.” (Strait v. Hale Construction Co. (1972) 26 Cal.App.3d 941, 949
[103 Cal.Rptr. 487].)
• “In determining whether a special employment relationship exists, the primary
consideration is whether the special employer has ‘ “[t]he right to control and
direct the activities of the alleged employee or the manner and method in which
the work is performed, whether exercised or not . . . .” ’ However, ‘[whether]
the right to control existed or was exercised is generally a question of fact to be
resolved from the reasonable inferences to be drawn from the circumstances
shown.’ ” (Kowalski,supra, 23 Cal.3d at p. 175, internal citations omitted.)
• “[S]pecial employment is most often resolved on the basis of ‘reasonable
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inferences to be drawn from the circumstances shown.’ Where the evidence,
though not in conflict, permits conflicting inferences, . . . ‘ “the existence or
nonexistence of the special employment relationship barring the injured
employee’s action at law is generally a question reserved for the trier of fact.” ’ ”
(Marsh, supra, 26 Cal.3d at p. 493.)
• “[I]f neither the evidence nor inferences are in conflict, then the question of
whether an employment relationship exists becomes a question of law which
may be resolved by summary judgment.” (Riley v. Southwest Marine, Inc. (1988)
203 Cal.App.3d 1242, 1248-1249 [250 Cal.Rptr. 718], internal citations omitted.)
• “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, supra, 26 Cal.3d at p. 492.)
• “California courts have held that evidence of the following circumstances tends
to negate the existence of a special employment: The employee is (1) not paid
by and cannot be discharged by the borrower, (2) a skilled worker with
substantial control over operational details, (3) not engaged in the borrower’s
usual business, (4) employed for only a brief period of time, and (5) using tools
and equipment furnished by the lending employer.” (Marsh, supra, 26 Cal.3d at
p. 492.)
• “The common law also recognizes factors secondary to the right of control. We
have looked to other considerations discussed in the Restatement of Agency to
assess whether an employer-employee relationship exists. The comments to
section 227 of the Restatement Second of Agency, which covers servants lent by
one master to another, note that ‘[m]any of the factors stated in Section 220
which determine that a person is a servant are also useful in determining
whether the lent servant has become the servant of the borrowing employer.’ The
secondary Restatement factors that we have adopted are: ‘ “(a) [W]hether the
one performing services is engaged in a distinct occupation or business; (b) the
kind of occupation, with reference to whether, in the locality, the work is usually
done under the direction of the principal or by a specialist without supervision;
(c) the skill required in the particular occupation; (d) whether the principal or the
worker supplies the instrumentalities, tools, and the place of work for the person
doing the work; (e) the length of time for which the services are to be
performed; (f) the method of payment, whether by the time or by the job; (g)
whether or not the work is a part of the regular business of the principal; and (h)
whether or not the parties believe they are creating the relationship of employer-
employee.” [Citations.]’ ” (State ex rel. Dept. of California Highway Patrol,
supra, 60 Cal.4th at pp. 1013-1014, internal citations omitted.)
• “Evidence that the alleged special employer has the power to discharge a worker
‘is strong evidence of the existence of a special employment relationship . . . .
The payment of wages is not, however, determinative.’ Other factors to be taken
into consideration are ‘the nature of the services, whether skilled or unskilled,
whether the work is part of the employer’s regular business, the duration of the
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employment period, . . . and who supplies the work tools.’ Evidence that (1) the
employee provides unskilled labor, (2) the work he performs is part of the
employer’s regular business, (3) the employment period is lengthy, and (4) the
employer provides the tools and equipment used, tends to indicate the existence
of special employment. Conversely, evidence to the contrary negates existence of
a special employment relationship. [¶¶] In addition, consideration must be given
to whether the worker consented to the employment relationship, either expressly
or impliedly, and to whether the parties believed they were creating the
employer-employee relationship.” (Kowalski, supra, 23 Cal.3d at pp. 176-178,
footnotes and internal citations omitted.)
• “Moreover, that an alleged special employer can have an employee removed
from the job site does not necessarily indicate the existence of a special
employment relationship. Anyone who has the employees of an independent
contractor working on his premises could, if dissatisfied with an employee, have
the employee removed. Yet, the ability to do so would not make the employees
of the independent contractor the special employees of the party receiving the
services.” (Kowalski, supra, 23 Cal.3d at p. 177 fn. 9.)
• [T]he jury need not find that [the worker] remained exclusively defendant’s
employee in order to impose liability on defendant. Facts demonstrating the
existence of a special employment relationship do not necessarily preclude a
finding that a particular employee also remained under the partial control of the
original employer. Where general and special employers share control of an
employee’s work, a ‘dual employment’ arises, and the general employer remains
concurrently and simultaneously, jointly and severally liable for the employee’s
torts.” (Marsh, supra, 26 Cal.3d at pp. 494-495.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 169-172
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[2][e] (Matthew
Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.22 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine, § 239.28 (Matthew Bender)
1 California Civil Practice: Torts §§ 3:26-3:27 (Thomson Reuters)
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