Article from Workcompcentral.com Friday, November 6, 2020
Louisiana appellate court ruled that a labor staffing company’s employee could not proceed with a tort suit against
her borrowing employer and its worker for an injury she allegedly suffered within hours of starting her assignment.
Case: Bourque v. Tony Chachere’s Creole Foods of Opelousas Inc., No. 20-371, 10/28/2020, published.
Facts: Crystal Bourque worked for FC Staffing Inc., a labor staffing company. FC sent her to work at a warehouse owned by Tony Chachere’s Creole Foods of Opelousas Inc.
On her first day at the warehouse, Bourque claimed she suffered an injury to her hand when Carl Trahan closed the leg of a plastic table on her fingers.
Bourque went into the administrative office to seek medical care and allegedly complained about inappropriate comments
made by Trahan, too. She then returned to the plant floor and completed her shift.
Bourque continued to work the rest of the week and part of the next week. After she left Tony Chachere’s, Bourque called five times during the following week checking on the availability of modified duty.
Procedural history: Bourque received workers’ compensation benefits from FC for her alleged hand injury. She also filed a
tort suit against Trahan and Tony Chachere’s, accusing Trahan of negligence and asserting that Tony Chachere’s was vicariously liable for his actions as his borrowing employer.
The defendants filed a motion for summary judgment, asserting Tony Chachere’s qualified as Trahan’s employer and that it was immune from civil liability to her under the Workers’ Compensation Act.
A trial court judge denied the motion, and the defendants appealed.
Analysis: The Court of Appeal for the 3rd Circuit of Louisiana said that under Louisiana law, there are 10 factual inquiries to
consider when determining whether a worker qualifies as a borrowed employee.
The factors are: who has the right of control over the employee; who selected the employee; who paid the employee’s wages; who had the right to fire the employee; who furnished the tools and the place to perform the work; the length of employment; whose work was being done at the time of the accident; whether there an agreement between the borrowing and lending employers; whether the employee acquiesced in the new work situation; and whether the original employer terminated his relationship with or relinquish his control over the employee.
No single factor is decisive, the court said, but there is a presumption that the general employer retains control of his employee, and the party who alleges that an employee has become a borrowed servant bears the burden of proving that
issue by a preponderance of the evidence.
In this case, Bourque conceded that eight out of the 10 factors were favorable to Tony Chachere’s. The only disputed factors
were the length of her employment and whether she had acquiesced to her work situation.
The court noted that one day of employment has been found not to bar a finding of borrowed servant status, but that employments of short duration will generally require a finding of neutrality as to this factor.
Bourque’s employment with Tony Chachere’s was brief, the court said, but her situation was not the typical borrowed employee situation wherein an employee working for one company is asked or told to do work for another company
pursuant to a contractual agreement.
The court said Bourque had signed on with FC specifically to be a borrowed employee to Tony Chachere’s. Thus, the court
said, the fact that she was hurt on the first day in the second hour of her employment was of no consequence.
Since Bourque was hired to work at Tony Chachere’s exclusively, the court said, the length of her employment did
not aid her argument that she was not a Tony Chachere’s employee.
The court said the acquiescence factor also did not aid Bourque’s position, since there was no dispute that she had
agreed to work for Tony Chachere’s exclusively, did not ask FC to place her in another position and made active attempts
to continue working for Tony Chachere’s after her assignment ended.
The court, therefore, found all 10 factors weighed in favor of finding Bourque was a borrowed employee of Tony
Chachere’s and that the motion for summary judgment should have been granted.
Disposition: Reversed and rendered.
To read the court’s decision, click here.
