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Curse of the Lamprey: Company Faces Costly Negligence Suit Because It Was NOT a Joint Employer


Henry I of England, possibly playing with a toy castle

The history of the Middle Ages is filled with tales of unusual and unexpected deaths. In 1016, for example, Edmund Ironside, King of England, was allegedly stabbed while on a toilet by an assassin hiding underneath. In 1131, Crown Prince Philip of France died while riding his horse in Paris after the animal tripped over a black pig that was running out of a dung heap. In 1135, Henry I of England supposedly died after eating too many lampreys, against his physician’s advice. A lamprey, for those keeping score, is a long, jawless fish with a funnel-like sucking mouth. (“Doctor, how many of these delicious-looking sea creatures may I ingest for dinner?”)

While Henry I might have fared better had he listened to medical advice, Edmund and Philip seem to have just found themselves in the wrong place at the wrong time.

This can happen to businesses too when retaining non-employee laborers.

But the cautionary tale in today’s post is different from those I usually write about. We often discuss here how businesses can take steps to avoid being deemed a joint employer. Today’s post, however, is about an unexpected bad outcome that can arise from not being a joint employer.

The culprit here is not a dung-covered black pig or a toilet assassin. The culprit here is workers’ compensation law.

As we all know, workers’ compensation law covers employees only. When workers’ compensation law applies, it is the only course of recovery for a worker injured on the job. There’s no suing for negligence, no tort claims, and no personal injury lawsuits.

Being a joint employer, in other words, can limit your liability when a worker is injured on the job.

A recent Texas case illustrates the point.

King Aerospace is a military contractor. It often relied on another company, ATG, to find maintenance specialists. ATG would identify and hire the specialists, who would then go work for King. ATG treated the workers as its employees and reported their pay on a Form W-2.

One of the workers supplied by ATG fell off a ladder while working on a project for King. He filed a personal injury suit against King Aerospace, alleging that King was negligent in causing his injuries. King responded by arguing that it was the man’s joint employer, meaning that the injuries would subject to Texas workers’ compensation law. When workers’ compensation law applies, workers’ compensation law provides the only available remedy for a workplace injury. There’s no separate personal injury suit.

A jury was asked to determine whether the man was King’s employee at the time of the injury, and the jury said he was not. King was therefore exposed to the full range of damages available in a negligence lawsuit. Hey, watch out for that black pig.

King appealed the decision, arguing that it was a joint employer as a matter of law. The Texas Court of Appeals, however, ruled that there were issues of fact and the jury was entitled to find that there was no joint employment relationship. The case now goes back to the trial court, where King Aerospace will face tort liability under personal injury laws.

Businesses are usually looking to avoid joint employer status. But as this case shows, when there’s a serious workplace injury involved, joint employer status can actually be beneficial.

The decision does not address whether ATG had workers’ compensation coverage for the worker. Presumably it did not. The case is also a good reminder to make sure that in agreements with companies supplying labor to your business (such as staffing agencies), the supplier company should agree to provide workers’ compensation coverage.

An agreement like that between King and ATG that could have prevented King’s bad outcome here. Or King could have taken more direct steps to establish itself as the man’s joint employer, even if that move seems counter intuitive.

On the other hand, I have no idea what could have saved poor Martin of Aragon, who supposedly died in 1410 from a combination of indigestion and uncontrollable laughing. Martin apparently was suffering from indigestion after eating an entire goose when his favorite jester, Borra, entered the king’s bedroom. Martin asked Borra where he had been, and Borra replied, “Out of the next vineyard, where I saw a young deer hanging by his tail from a tree, as if someone had so punished him for stealing figs.” This joke caused the king to die from laughter.

I guess you had to be there.

For more information on unusual deaths in the Middle Ages, click here: https://en.wikipedia.org/wiki/List_of_unusual_deaths#Middle_Ages

© 2022 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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