Wedeck v. Unocal Corporation
59 Cal.App. 4th 848 (1997)
P was ee of Lab Support, who assigned her to Unocal, gets injured, brought PI suit against Unocal.
Barred, EXCLUSIVE REMEDY.
- A “special employment” relationship arises when an employer lends an employee to another employer and relinquishes to the borrowing employer all right of control over the employee’s activities.
- The borrowed employee is held to have two employers, the original or general employer and a second, special employer.
- In this dual employer situation, the employee is generally limited to a statutory workers’ compensation remedy for injuries he or she receives in the course of employment with the special employer; he or she may not bring a separate tort action against either employer.
- Factors relevant to determining whether an employee is the borrowed employee of another include:
- (1) whether the borrowing employer’s control over the employee and the work performed extends beyond mere suggestion of details or cooperation;
- (2) whether the employee is performing the special employer’s work;
- (3) whether there was an agreement, understanding, or meeting of the minds between the original and special employer;
- (4) whether the employee acquiesced in the new work situation;
- (5) whether the original employer terminated its relationship with the employee;
- (6) whether the special employer furnished the tools and place for performance;
- (7) whether the new employment was over a considerable length of time;
- (8) whether the borrowing employer had the right to fire the employee; and,
- (9) whether the borrowing employer had the obligation to pay the employee.
- Of these considerations, the primary one in determining whether a special employment relationship exists is whether the special employer has the right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not.