Baldwin Haspel Burke & Mayer LLC

Maritime Update: Borrowed Servant/Employee Status for Workers Hired Through Staffing Agencies


The United States District Court in the Middle District of Louisiana on January 26, 2015 decided a motion for summary judgment finding the vessel owner was the borrowing employer of a worker hired though a staffing agency. 

In the case of “In re: Weeks Marine, Inc. as owner and operator of the BT 229 et al”, Civil Action No. 13-cv-831, the United States District Court in the Middle District of Louisiana  granted summary judgment in favor of a staffing agency finding that the worker they provided to a vessel owner was the borrowed servant/employee of the vessel owner. The court also concluded the staffing agency no longer owed benefits to the employee. Instead the obligation was owed by vessel owner as the borrowing employer. 

The facts of the case established Weeks entered into a contract with Aerotek to provide supplemental staffing of workers to Weeks. Under the contract, Aerotek provided Randall Harrold to work as a crane operator on the BT 229 and he worked for 17 days until he was injured while performing repairs on the crane. Weeks then filed a limitation action in the federal court. Harrold filed a claim in that federal suit but also filed a separate suit for his injuries in state court. Aerotek also filed a claim in the federal suit seeking reimbursement of the amounts it had paid to Harrold. Aerotek later filed for summary judgment seeking a determination Harrold was the borrowed servant/employee of Weeks. Aerotek also sought summary judgment for reimbursement for the benefits it had paid to Harrold. While the judge ruled in favor of Aerotek on the employment status issue, it found there were material facts not sufficient in the record for it to decide whether the benefits to be reimbursed were workers compensation benefits or maintenance & cure. 

In making the determination that Harrold was the borrowed employee of Weeks, the court analyzed and decided based on the following factors:

1. Weeks exercised control over Harrold’s day-to-day work on the barge and Aerotek played no role in supervising Harrold;

2. The overall job as well as the specific task being performed by Harrold at the time of the accident was essential to the business of the barge and for Weeks’ benefit;

3. Despite the contract language between Aerotek and Weeks, the “reality of the workplace” showed Harrold believed he was working only for Weeks;

4. Harrold was aware he was working for Weeks and continued to do so throughout the time he worked on the barge;

5. It was clear the place of employment was the barge owned by Weeks which also furnished his tools;

6. Harrold had no employment contract with Aerotek and was supervised totally by Weeks while on the job thereby indicating no continuing relationship with Aerotek;

7. The court considered the fact that Harrold’s employment with Weeks was only for 17 days prior to the injury, and while not for a considerable length of time, considered it “neutral” to determine employment status;

8. While under the contract both Weeks and Aerotek had the right to terminate Harrold with 30 days written notice, Weeks could also do so at any time finding this indicated Weeks was the employer; and

9. Although Aerotek issued Harrold’s paycheck, Weeks was required under the contract to furnish the funds to pay for Harrold’s services.

If you have any questions, please feel free to contact Bill Schwartz at (504) 569-2900 or wschwartz@bhbmlaw.com.


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