Superior Shipyard asked Global Oilfield Contractors to provide additional labor. Global then utilized the Terrobonne Parish Work Release Program to secure the services of Brian Redmond. Global hired Redmond and assigned him to Superior Shipyard. Ten days later, Claimant was purportedly injured when the scaffolding underneath him broke and he fell. Redmond filed a tort suit against Superior, and Superior contended that Claimant was limited to workers’ compensation benefits. Superior ultimately moved for summary decision, which the trial court granted.
On appeal, Louisiana’s First Circuit addressed the “borrowed employee” defense. If Redmond was a borrowed servant, then his remedy falls exclusively in workers’ compensation, under either the Longshore and Harbor Workers’ Compensation Act or Louisiana’s workers’ compensation law. The court noted the fact-intensive nature of the defense, as well as the factors considered in borrowed servant cases:
While there is no fixed test, the factors to be considered in determining the existence of a borrowed employee relationship include: right of control; selection of employees; payment of wages; power of dismissal; relinquishment of control by the general employer; which employer’s work was being performed at the time in question; the existence of an agreement, either implied or explicit, between the borrowing and lending employer; furnishing of instructions, tools and place for the performance of the work; the length of employment; and the employee’s acquiescence in a new work situation.
Considering the evidence, the First Circuit concluded that Redmond was Superior’s borrowed employee:
With regard to the right of control and the relinquishment of control by Global, the evidence of record demonstrates that each day, a Global employee would transport Redmond from the prison to the Superior Shipyard’s facility and back to prison again at the end of his work shift. However, once at the Superior Shipyard’s facility, Redmond attended a daily work schedule meeting conducted by Superior Shipyard after which he would receive his work assignment for the day from the Superior Shipyard foreman.
Moreover, while a Global employee who may have been in a supervisory position was present at the Superior Shipyard facility, Redmond’s work was in fact supervised by the Superior Shipyard foreman, not the Global employee. At no time did any Global employee ever direct Redmond’s activities at the Superior Shipyard’s facility. Indeed, Redmond acknowledged that his contact with Global consisted of transporting him to and from the worksite and delivering his paycheck.
The work Griffin performed was Superior Shipyard’s work, and not Global’s. Redmond worked only at Superior Shipyard’s facility and never worked at any other place while employed with Global. Redmond never went to Global’s office for any reason. All instructions given to Redmond were furnished by the Superior Shipyard foreman, who was also the individual Redmond sought out if he encountered a problem or needed anything while on the jobsite. Additionally, except for the personal equipment that Redmond himself supplied, such as a welding lead, chipping hammer, gloves, welding shield, jacket, wrench, and screwdriver, Superior Shipyard supplied all other equipment and machinery needed to perform the job. Global supplied no tools or equipment.
Regarding power of selection and dismissal, although Redmond was hired by Global, he was selected for the purpose of working at the Superior Shipyard facility, and Superior Shipyard acquiesced in the assignment. And while Superior Shipyard did not have the power to terminate Redmond’s employment with Global, Superior Shipyard did have the authority to terminate Redmond’s employment with Global, Superior Shipyard did have the authority to have him removed from its jobsite. The power to terminate an employee’s services at a job site is enough to satisfy the power of dismissal factor.
In considering the payment of wages to the employee, the determinative consideration in addressing this factor is which company provided the funds to pay Redmond. The evidence demonstrates that Redmond clocked in and out at the Superior Shipyard facility on a time card labeled “GOC,” for Global Oilfield Contractors. His time card was maintained by Superior Shipyard and then submitted to Global. Global charged Superior Shipyard S24.00 per hour for Redmond’s services and then paid Redmond $12.00 per hour out of that sum. Thus. Superior Shipyard provided the funds to pay Redmond.
Because Redmond was injured only two weeks after he began his employment, the borrowing arrangement had not been lengthy or extending over a considerable period of time. However, Redmond testified that he believed that Superior Shipyard was satisfied with his work and that his assignment there “was going to be permanent.” Similarly, representatives of Superior Shipyard and Global attested that, had it not been for the accident, Redmond would have continued to be employed at the Superior Shipyard facility for as long as his work continued to be satisfactory and his services were needed. Additionally, while he attested that he believed he was working for Global, Redmond acknowledged that he “was okay with” the job assignment to Superior Shipyard and readily agreed that he would have kept performing the job as assigned if he had not been hurt. Thus, he clearly acquiesced in the arrangement.
Finally, turning to the question of whether an agreement existed between the borrowing and lending employer, Global and Superior Shipyard did in fact have a contract for the furnishing of labor, and the contract specifically provided that Global’s employees were not the employees of Superior Shipyard. However, the actions of Global and Superior Shipyard were clearly inconsistent with this written agreement. Redmond worked solely at the Superior Shipyard and was instructed and supervised by the Superior Shipyard foreman. Other than actions in transporting Redmond for medical treatment and preparing of the accident report with regard to the accident at issue, Global’s contact with Redmond consisted of providing a ride to and from the prison and work and delivery of his paycheck. All elements of the work were directed and controlled by Superior Shipyard.
Redmond v. Superior Shipyard and Fabrication Inc., 2013-0398 (La. App. 1 Cir. 11/1/13) (internal citations omitted)
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)