News

March 01, 2008

In our recent Newsletter of September 2007, we described the Behrens v. California Cartage case where loaning and borrowing employers were both immunized from common law liability because of the exclusivity provisions of Section 5.  You may recall that in that case, the plaintiff and defendant were referred by two separate temporary employment agencies to California Cartage.  In denying the claim, the court noted that since the two employees were loaned to the same employer they clearly became employees of that borrowing employer.

In the recent Robert Chavez v. Transload Services case, Chavez was clearly referred by Tandem Staffing Solutions, a temporary employment agency to Transload Services, the borrowing employer.  In attempting to avoid the exclusivity provisions of Section 5, the claimant attempted to show that his situation was different.  His reasons were as follows: Chavez stated he was treated differently because he was not permitted to operate dangerous or unprotected equipment, that he submitted a daily time ticket which contained multiple terms and conditions and that the officers of Transload had testified that they did not regard him as an employee and insisted that they would not have honored a workers’ compensation claim if one has been made against them.  The court pointed out that Transload had the right to discharge the claimant for any reason and exercised a large degree of control over claimant’s employment.  He worked the same hours, took breaks as designated by Transload and received instructions from Transload as to how particular work was to be performed.  Despite the opinion testimony of the Transload officers, Chavez was clearly an employee.

The claimant also argued that he had never consented to be an employee of Transload and that there is no evidence that he gave such consent.  He further maintained he had no reason to believe he was a Transload employee because he was paid by Tandem.  The court emphasized that the claimant responded to the control and direction of the work activities, he accepted Transload employees handbook and received individualized training from Transload.  Chavez thereby supplied all of the necessary consent.

Editor’s Note:

The fact that the claimant was treated differently is hardly reason to avoid the defense of Section 5.  Again, it seems rather surprising that this case was ever brought.

Chavez v. Transload Services, et alNo. 1-07-0125, decided March 4, 2008

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, #1900 Chicago, IL 60606 (312) 855-1105