April 01, 2008

Loaning and Borrowing Employers Both Immunized From Common Law Liability

April 01, 2008

Roberto Chavez v. Transload Services, et al No. 1-07-0125

In our August 2007 Newsletter, we discussed the case of Marshall Behrens, who was sent by a labor service (People Link) to California Cartage Company.  At the same time, Cynthia Smith had been sent by another labor service (Staffers Resources) to California Cartage Company, as well.  Smith allegedly caused Behrens’ injury.  Behrens sued both California Cartage Company and Staffers Resources after collecting compensation from People Link.  The court dismissed Behrens’ suit on the basis that Smith’s loaning and borrowing employers were immunized by Section 5.

In our Editor’s Note, we wondered why this case was ever filed.  Recently, in another case, Roberto Chavez, in an action against Transload Services, attempted to circumvent Section 5.  Chavez was sent by Tandem Staffing, a day labor service, to Transload Services where he was injured.  In his civil complaint, Chavez attempted to distinguish his employment from the other Transload employees.  Chavez argued that his work duties were more limited than the full time Transload employees, including the prohibition against his using dangerous equipment, as well as the manner in which his time was recorded.  He further contended that he had not consented to be an employee of Transload. The appellate court disagreed and, in response to Chavez’ allegations stated:

Similarly, in the instant case, plaintiff accepted Transload’s employee handbook and received individualized training from Transload.  While the time ticket placed some restrictions on his employment, Doug Stone stated that he had the right to discharge plaintiff for any reason, set plaintiff’s schedule, and control his work, all of which indicate that Transload exercised a large degree of control over plaintiff’s employment.  Plaintiff was treated the same as the Transload employees in that he worked the same hours, took breaks at times so designated by Transload, and received instructions from Transload as to how particular work was to be performed.  Furthermore, plaintiff impliedly consented to the borrowed employment relationship by accepting the employment assignment with Transload, as well as its control and direction of his work activities.

Editor’s Note:

Perhaps the finding that both loaning and borrowing employers are immunized on the basis of Section 5 will discourage any further actions on this issue.

Roberto Chavez v. Transload Services, et al No. 1-07-0125, decided March 4, 2008

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