WC Update: Determining Whether a Worker is an Employee
Crystal Whicker worked as an environmental services housekeeper for Crothall Services Group, who contracted with Novant Health, Inc. to provide cleaning services for 13 Novant healthcare facilities in North Carolina. Ms. Whicker worked at one of these hospitals, Forsyth Medical Center. On June 2, 2013, she clocked out for a break and fell while walking in the parking lot injuring her left shoulder. The parking lot was exclusively controlled and managed by Novant. Ms. Whicker returned to her position, but was thereafter terminated from employment for smoking an e-cigarette during an unauthorized break. Crothall’s policy required that employees adhere to Novant’s non-smoking policy on the hospital’s premises, which Ms. Whicker had violated. She then filed a workers’ compensation claim against Crothall and Novant, which was denied by both defendants. The claim was heard by a Deputy Commissioner who determined that Ms. Whicker was not a joint employee of Crothall and Novant and denied her claim for benefits against Novant. Under the going and coming rule, and because the parking lot was solely maintained and controlled by the non-employer Novant, the Deputy Commissioner and the Full Commission concluded that Ms. Whicker did not have a compensable workers’ compensation claim.
The Court of Appeals in Whicker v. Compass Group USA, Inc. affirmed the Commission’s decision denying Ms. Whicker’s claim. The Court concluded that Ms. Whicker was an employee of Crothall only. The Court provided an analysis of why Ms. Whicker was not an employee of Novant under the joint employee doctrine or the lent employee doctrine. Joint employment occurs when an employee is under contract with two employers that both exercise control over the employee’s activities. The employee must be performing services for both employers and the services provided to both employers must be the same or closely related. Under the lent employee doctrine, the general employer lends an employee to a special employer, thus rendering the special employer liable for workers’ compensation benefits if: (1) the employee has made a contract of hire, express or implied, with the special employer; (2) the work being done is essentially that of the special employer; and (3) the special employer has the right to control the details of the work.
The Court emphasized that Ms. Whicker was hired, paid, trained, and supervised by Crothall only. The contract between Crothall and Novant expressly stated that Ms. Whicker was an employee of Crothall. Further, Ms. Whicker’s own testimony was that she did not believe she was an employee of Novant. Finally, the Court concluded that Ms. Whicker’s work was under the control of Crothall and not Novant. Again, Crothall had sole responsibility for hiring, training, managing, and directing personnel. Crothall had its own management structure present at the hospital where Ms. Whicker worked, and Novant’s personnel did not have the authority to supervise, discipline, or terminate a Crothall employee. The Court held that Novant’s supervision and control over Ms. Whicker, or over any other Crothall employee, was minimal at best. The Court ultimately upheld the Commission’s denial of Ms. Whicker’s workers’ compensation claim.
Risk Handling Hints: The decision in Whicker provides a reminder of what the Court will look at when determining whether there is joint or lent employment between two employers. The factors that will likely be considered are: the terms of the contract for work between the two companies; the terms of the injured worker’s employment contract; the management/supervisory structure; the authority to perform essential employment functions (such as hiring, training, firing); the provision of employment benefits; and the injured worker’s own understanding of her employment situation through testimony. If a claim involves a question of which party will be considered an employer for purposes of workers’ compensation liability, these factors should be considered.