\nJerry Lehocky<\/p>\n
Courtesy of Pond Lehocky Giordano<\/p>\n
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If there is insufficient control by the general contractor over the work performed by the employee, then the subcontractor or labor-supplying group remains the employer of that employee, he said.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n\u201cIf the borrowed employee is not an employee of the general contractor, then that general contractor could face exposure under a negligence action brought by the employee in addition to a workers\u2019 compensation action against the subcontractor,\u201d Lehocky said. \u201cThe amount of monetary exposure to the general contractor is multiples of what the workers\u2019 compensation exposure is.\u201d<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\nLehocky said that contracts may address some of these issues, but language is not controlling if the facts show otherwise.<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n\u201cFor example, the contract could state very specifically that the supplying employer remains the \u2018employer\u2019 for purposes of workers\u2019 compensation; however, if the actual facts are that the general contractor is in actuality controlling the work performed by the employee, the contract language can be easily voided,\u201d he said.<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\nMaria Moffatt, an attorney with Gerstle<\/span><\/span> Snelson<\/span><\/span> in Dallas, noted that liability for the prime contractor depends on several factors: state statutes, contract terms, the parameters of the employment agreement and most importantly, the authority exercised on the jobsite<\/span><\/span>.<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n\u201cTherefore, the provisions of the contract as to supervision of workers, safety meetings and general control of the jobsite<\/span> become very important,\u201d she said. \u201cAnd then if there are contracts or employment agreements governing the borrowed employee, those provisions have to be read in conjunction with the prime contract\u2019s provisions.\u201d<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n\n\n
<\/div>\n<\/div>
\nMaria Moffatt<\/p>\n
Courtesy of Gerstle Snelson<\/p>\n
\u00a0<\/p>\n<\/figcaption><\/figure>\n
In general, though, an owner or general contractor is responsible for the safety of the workplace or jobsite for all workers on site and the contractor who is supervising, using or directing the work of the borrowed employee would most likely have responsibility for their safety unless contractually stated otherwise, she said.<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\nAttorney Carol Sigmond, a partner at Greenspoon Marder in New York, pointed to the \u201cborrowed employee doctrine,\u201d which makes the borrower liable.<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n\u201cSometimes, the employee is deemed a \u2018special employee,\u2019 which is a matter of state law, so the rules will vary from state to state somewhat,\u201d she said. \u201cThis is often used to shift liability to a basically judgment-proof single-purpose entity away from the \u2018real\u2019 company for financial reasons.\u201d<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n\n\n
<\/div>\n<\/div>
\nCarol Sigmond<\/p>\n
Courtesy of Greenspoon Marder<\/p>\n
\u00a0<\/p>\n<\/figcaption><\/figure>\n
For that reason, when this doctrine is invoked to protect the real employer, courts will look at the degree of control the lending employer has over the borrower, she said. They will also look at the oversight by the lending employer, the relationship between the borrower and the lender, decision making by the lending employer, who is actually controlling the work site and the borrowed employee.\u00a0<\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n