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No simple answer to questions about the status of the worker



A recurring theme in the state supreme courts in recent months has been perhaps the most fundamental issue of employee compensation – coverage.

Courts in Texas, Kentucky, Montana and Missouri addressed the applicability of workers' compensation. laws for employees with dual employers and in industries that have been exempted from the employee benefit system, with mixed results.

On April 30, the Texas Supreme Court ruled that an employee employed by a staffing agency and assigned to a client qualified as an employee of the client company under the State Workers & # 39; Compensation Act.

In the Waste Management of Texas v. Stevenson a majority of the court said that the test for determining whether a worker is employed by a lending employer centers around the issue of control over the worker.

"Instead of focusing on the legal question of who had the contractual right to control the plaintiff's work, we instead saw a factual question of who exercised the right to control as a practical matter during the parties' daily work," the court said. .

Jeffrey Belfort, co-representative of the worker, Robert Stevenson, said his argument had been centered. on the appropriate standard for granting a summary assessment as opposed to the standard for determining coverage.

He explained that the standard for summary assessment is "whether fair people differ in their conclusions in the light of all evidence", and he said that the document contained extensive evidence regarding the amount of control that waste management did, and did not, exercise over its borrowed employees .

Among the evidence was a contract stating that Stevenson was an independent entrepreneur, who, according to the court, gave "have your cake and eat it too" taste to the waste management argument that Stevenson should be treated as an employee. However, the court ruled that the agreement had not been verified and concluded that the evidence was sufficient to establish that Stevenson was a waste management employee by law.

Justice Jeffrey Boyd wrote separately, arguing that the majority decision created "a new and different test to determine whether a worker employed by a staffing agency and assigned to the agency's client company qualifies as an employee of the client company under the Workers' Compensation Act. ”

When an express agreement provides that a worker is not employed or deprives the employer of the right to control, Justice Boyd argued that the contract should control unless the evidence shows that "the actual operating agreement was one that gave the alleged (employer) the right to control. "

On March 30, the Kentucky Supreme Court also addressed the protection of a temporary worker ̵

1; and it reluctantly ruled that a statutory security violation benefiting improvement was not available to such a worker.

Kentucky law provides for a 30% improvement in workers' compensation if an accident is caused to some degree by the employer's violation of workplace safety.

Although the legislature did not explicitly exclude temporary employers from the law, the court said the charter required Nathaniel Maysey to prove that his employer, a staffing company, had committed the violations – not his employer's client.

Since there was no evidence that Mr. Maysey's employer was aware of the uncertain practices of Magna-Tech Manufacturing LLC, where it had sent him, and the court said he could not obtain a reinforced award under state law.

The court acknowledged that the outcome of Maysey v. Express Services Inc. is "harsh", especially given the seriousness of Mr. Maysey injured and the "serious" nature of security breaches, but the court said the harshness was "potentially mitigated" by the fact that there is an ongoing federal civil lawsuit where Mr. Maysey is pursuing claims against Magna-Tech's parent company and the owner of the premises.

Attorney Thomas W. Davis, representing Mr. Maysey, claimed that the staffing company Express Services Inc., "intentionally violated" its obligation to provide a safe workplace to Mr. Maysey by placing the teenager in a workplace with "several obvious dangers" and by not making an effort in good faith to give Mr. Maysey a workplace free from risks that could cause death or serious physical injury

Mr. Davis advocated a revision of the existing Kentucky Act that allows a lending employer to "avoid liability for all penalties no matter how serious the breach", which "creates a financial incentive for an employer to assign temporary employees the most dangerous job positions."

Alternatively, he called on the court to adopt a rule that “where a temporary employer does not take due care to provide a job vacancy free from recognized risks that could cause death or serious physical injury to its employees, the temporary Auxiliary Service employer should be found to have convinced about erroneous actions by his client, the host employer, "and thus exposes the temporary auxiliary service provider to liability for enhanced benefits under state law.

H. Clay List, who represented Express Services, said the court's ruling "appropriately places the burden on ensuring a safe working environment for the host employer rather than the temporary employment agency, as temporary employment agencies have little or no control over the security policies and procedures put in place by their clients." [19659003] The list reflected that “client employers often use extremely complex and sophisticated techniques and / or machines that the temp agency has no knowledge or expertise, and thus rather than expecting the temp agency to provide training and to regularly inspect, maintain and / or monitor each such machine at each client employer's workplace, according to Kentucky law, it is hosted by the employer. ”

On April 8, the Missouri Supreme Court ruled that an unbroken chain of contractor-subcontractor relationship between an injured truck driver and the employer of an alleged tortfeasor created a statutory employer relationship.

Under Missouri law, an independent contractor is considered to be the employer of the employees of his subcontractors and their subcontractors when they are employed on or near the premises where the main contractor performs work, the court in State ex rel. Beutler Inc. v. Midkiff .

This principle worked to prevent Joshua McArthur's negligence against George J. Shaw Construction Co., the court said. McArthur's actual employer was a subcontractor to a Shaw subcontractor.

Abigail Han, representing Mr McArthur, said she expected the decision to have "not much impact" as it only reintroduced the existing law on borrowed workers. She said she had hoped the court would have used the case as an opportunity to clarify some points about the law.

On March 25, the Montana Supreme Court ruled that the Federal Employer Liability Act does not preclude the state law of an injured railroad worker. bad claim to faith.

I Dannels v. BNSF Railway Co. the court said that FELA's clear language reveals that the purpose of the congress was to adopt a compensation system for railway workers who suffer occupational injuries. caused by the negligence of their employer, but it did not intend to "regulate through FELA the entire field of injury and claims that a railway employee may have."

The court thus said, "FELA does not occupy the entire recovery field for injured railroad workers to prevent state unlawful legal claims based on self-insured railroad damages."

Mark Parker, who represented the Washington Legal Foundation as an amici decision "will further complicate an already complicated area of ​​law."

Dennis Conner, co-representative of the worker, Robert Dannels, said the decision was good news for railway workers, as they now know they have "rights and protection against abuse. and abused by the people who adapt and handle FELA claims. "

Sherri Okamoto is a Legal Reporter at WorkCompCentral, a sister publication of Business Insurance

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