Whicker v. Compass Group USA et al. – Joint Employee and Lent Employee Doctrines

A significant number of employees in North Carolina work for contractors and subcontractors of larger firms. The question of workers’ compensation benefits in those cases hinges upon which agency was the actual employer. Courts consider a myriad of factors when considering this question, and in some cases will find the worker had two employers, based on the joint employee doctrine and the lent employee doctrine. cleaning

These doctrines were laid forth in the 1989 North Carolina Court of Appeals case of Anderson v. Texas Gulf, Inc. The same court cited that case in weighing the more recent Whicker v. Compass Group USA et al, which considered whether a worker for a cleaning crew was employed by both the cleaning contractor and the health center to which she reported each day.

According to court records, the cleaning company contracted with numerous health care organizations to provide standard cleaning services to various facilities. The contract between the cleaning company and this health care company provided services to 13 facilities in North Carolina, including one in Forsyth, which was the center of this complaint. 

Approximately 230 cleaning workers were dispatched to that location, which was nearly 2 million square feet.

The agreement between the two companies specified the work to be done, but the health center didn’t directly oversee the cleaning crews.

Plaintiff worked as a housekeeper for the cleaning company. One day in June 2013, she clocked out for a lunch break and walked into the parking lot. There, she tripped and fell and broke her shoulder. She immediately reported the injury to her supervisor and was treated in the facility emergency department.

Claimant filed a claim for workers’ compensation from the cleaning company, which denied the request, arguing the injury was not compensable because it was not causally related to her employment.

Ultimately, plaintiff returned to her job and continued to work there until November 2013, when she was caught smoking an e-cigarette on hospital grounds, a violation of policy. She was terminated.

Soon after that, and about five months after the accident, she filed a notice of claim listing both the cleaning company and the hospital as employers. The hospital denied the claim, saying she had not been an employee.

Deputy commission determined plaintiff’s injury didn’t occur in the course and scope of employment and further, she was not a joint employee of the two companies. Her claim for workers’ compensation against the hospital was denied.

Plaintiff appealed, but the full commission issued an affirmation of deputy commissioner’s ruling, finding no employment relationship existed between plaintiff and the hospital. Among the factors cited:

  • Hospital not in charge of hiring/ firing or supervising/ managing/ directing/ or training cleaning crew;
  • Hospital does not offer benefits – including workers’ compensation – to cleaning crew. All that is offered by cleaning company;
  • Hospital did not specify how many workers needed for each task;
  •  Hospital did not purchase inventory or equipment for cleaning services;
  • Hospital did not determine which cleaning crew workers would be assigned to its facility;
  • Plaintiff never entered into any contract employment agreement with hospital.

Plaintiff appealed the commission’s decision to the court of appeals. The court concluded under the joint employment and lent employee doctrine, plaintiff was not an employee of the hospital for workers’ compensation purposes.

Why would the plaintiff want so badly for this designation when the commission determined she hadn’t been acting in the course and scope of employment? Because a limited exception to the “coming and going” rule (which says employee injuries while coming and going from work aren’t compensable) is when an employee is injured going to or from work, but is on the premises of the employer. Her claim for benefits was denied on the grounds her injury wasn’t incurred in the course and scope of employment with the cleaning company But if she could establish that the hospital was an employer too, she could potentially secure benefits.

However, the appeals court affirmed the commission.

Joint employment happens when a single employee is under contract with two employers, under the control of both and simultaneously performs services for both. Meanwhile the lent employee doctrine states that a special employer can be liable to pay workers’ compensation for the employee of a general employer only if: Employee has made a contract of hire with special employer, work being done is essentially that of the special employer and special employer has the right to control the details of the work. Here, the appeals court ruled, under both of these doctrines, plaintiff failed to prove her case and workers’ compensation benefits were denied.

If you have been injured at work, contact the Lee Law Offices at 800-887-1965.

Additional Resources:

Whicker v. Compass Group USA et al, April 5, 2016, North Carolina Court of Appeals

More Blog Entries:

Is South Carolina Opt-Out of Workers’ Comp Proposal Dead? April 9, 2016, Charlotte Workers’ Compensation Lawyer Blog

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