January 03, 2009

Retaliatory Discharge Action Can Be Available to Borrowed Employee

January 03, 2009

Hester v. Gilster-Mary Lee Corporation No. 5-07-0283

Carrie Hester was assigned to work for Gilster by her employer, Manpower, Inc.  During her entire time at Gilster, Hester had no contact with Manpower.  In her suit against Gilster, she alleged as follows:

  1. On September 13, 2006, under threat of subpoena, Hester gave testimony in the workers[‘] compensation case of Barba v. Gilster-Mary Lee Corporation, Case No. 06-WC-34548
  2. On the next day, September 14, 2006, Gilster-Mary Lee, by and through its agents, Greg Wright and Mike Phillips, informed Hester that [it] would not be using her services and that if she wanted other employment she would have to return to Manpower, Inc.
  3. On September 14, 2006, Hester was refused work by [Gilster] in retaliation for her giving testimony in a proceeding authorized by the Illinois Workers[‘] Compensation statutes;
  4. Hester was damaged as a result of Gilster’s refusal in that she was deprived of gainful employment and she suffered mental anguish and distress[.]

The trial court dismissed Hester’s complaint “because it fails to state facts sufficient to support allegation that she was an employee of the defendant and that she was discharged from the defendant.”

The appellate court reversed pointing out, quite logically, that borrowing employer liability for eventual payment would most certainly rest with the borrowing employer, stating:

During the time she worked for Gilster, Hester was confined to her workers’ compensation remedies for any injuries she might have sustained.  We agree with Hester’s assertion that if Gilster was allowed to shield itself from liability other than for workers’ compensation benefits, then it should not be able to assert immunity from this retaliatory discharge suit by claiming it was not Hester’s employer and did not discharge her but merely sent her back to Manpower, the employment agency.

Editor’s Note:

The relationship between Hester and the borrowing employer was certainly sufficient to satisfy the court that the borrowing employer would have liability for this action.  The discharge of an employee for testifying in a co-worker’s compensation claim here would certainly provide the basis of such action.

Hester v. Gilster-Mary Lee CorporationNo. 5-07-0283, decided December 18, 2008

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, 19th Floor Chicago, IL 60606 (312) 855-1105