Doughty v. Work Opportunities Unlimited/Leddy Group

JABAR, J.,

with whom ALEXANDER, J., and SILVER, J., join, dissenting.

[¶ 30] I respectfully dissent because Charles Doughty is an employee pursuant to the traditional test, and he is also an employee pursuant to the dual/lent employee doctrine. As presented to us, Doughty’s employment status is the central issue in reviewing the hearing officer’s denial of Doughty’s petition against Poland Spring to remedy discrimination. See 39-*418A M.R.S. § 353 (2010) (“An employee may not be discriminated against by any employer in any way for testifying or asserting any claim under this Act.” (emphasis added)). The hearing officer misconceived the meaning of the applicable legal standard in determining whether Doughty was an employee of Poland Spring.

I. DISCUSSION

[¶ 31] After the initial startup of its plant in Hollis approximately ten years ago, Poland Spring has hired all of its employees exclusively through temporary staffing agencies. In the spring of 2008, Doughty sought employment at Poland Spring by submitting an application with Work Opportunities. After an interview with Poland Spring officials, Doughty was hired. He began work filling, capping, and labeling bottles as they passed through a large filling machine. Poland Spring controlled Doughty’s schedule and provided all the equipment and machines for him to work with. He was paid by time worked, and performed work that was part of Poland Spring’s regular business. Doughty had two Poland Spring supervisors and no Work Opportunities supervisor.

[¶ 32] The day following Doughty’s workplace injury, Poland Spring notified Work Opportunities that because of the accident they were terminating their relationship with Doughty and he was not to return to Poland Spring.

[¶ 33] The hearing officer erred in his decision when he stated that section 104 assigned liability for compensation cases against Poland Spring to the referring agency’s insurance carrier. Section 104 affords employers who hire temporary employees through temporary staffing companies protection from civil lawsuits and does not assign liability for workers’ compensation injuries to the staffing agency’s insurance carrier, nor does it shed light on the definition of an employee under Maine Workers’ Compensation Act. 39-A M.R.S. § 104 (2010). Section 104 states:

An employer that uses a private employment agency for temporary help services is entitled to the same immunity from civil actions by employees of the temporary help service as is granted with respect to the employer’s own employees .... “Temporary help services” means a service where an agency assigns its own employees to a ... 3rd party’s work force in work situations such as employee absences, temporary skill shortages, seasonal work load conditions and special assignments and projects.

39-A M.R.S. § 104. Poland Spring did not use Work Opportunities for these purposes. For the past ten years Poland Spring hired all of its employees through Work Opportunities or other staffing agencies. In effect, Poland Spring subcontracted out work that normally would have been carried out by its human resources department.

[¶ 34] Because this case does not involve the issue of immunity surrounding a civil law suit, section 104 should play no part in determining who is responsible for workers’ compensation benefits arising out of workplace injuries or who an employee is for purposes of benefits under the Act. There is significant Maine authority that defines who an employee is for purposes of the Act.

A. Traditional Test

[¶ 35] Subject to certain exceptions not applicable here, an “employee” is broadly defined in our Workers’ Compensation Act as “every person in the service of another under any contract of hire, express or implied, oral or written.” 39-A M.R.S. § 102(11)(A) (2010). This language — “any contract of hire, express or implied, oral or *419written” — has remained unchanged since the first workers’ compensation statutes were enacted in 1915. See 39-A M.R.S. § 102(11)(A); 39 M.R.S.A. § 2(5)(A) (Supp.1992); R.S. ch. 55, § 2 (1930); P.L. 1915, ch. 295, § 1. Thus, whether an individual may pursue a claim for benefits against an employer, including a petition to remedy discrimination pursuant to 39-A M.R.S. § 353, depends upon whether that individual is an “employee” pursuant to section 102(11)(A). In this case, the hearing officer did not properly focus on whether a “contract of hire, express or implied” existed between Doughty and Poland Spring pursuant to section 102(11)(A). The hearing officer mistakenly relied upon the language in section 104 when he stated in his decision, “[s]ection 104 assigns liability for the underlying compensation claims from temporary employees injured during job assignments to the compensation insurance of the employment agency.”

[¶ 36] Since our decision in Murray’s Case, 130 Me. 181, 186, 154 A. 352, 354 (1931), we have consistently applied an eight-part test in determining whether an individual meets the statutory definition of “employee” as currently codified at section 102(11)(A):

(1) the existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price; (2) independent nature of his business or his distinct calling; (3) his employment of assistants with the right to supervise their activities; (4) his obligation to furnish necessary tools, supplies, and materials; (5) his right to control the progress of the work except as to final results; (6) the time for which the workman is employed; (7) the method of payment, whether by time or by job; (8) whether the work is part of the regular business of the employer.

Timberlake v. Frigon & Frigon, 438 A.2d 1294, 1296 (Me.1982) (quotation marks omitted); see also West v. C.A.M. Logging, 670 A.2d 934, 936-37 (Me.1996); Stone v. Thorbjornson, 656 A.2d 1211, 1213 (Me.1995); Black v. Black Bros. Constr., 381 A.2d 648, 650-51 (Me.1978); Madore v. Liberty Nat’l Bank, 289 A.2d 36, 38 (Me.1972); Kirk v. Yarmouth Lime Co., 137 Me. 73, 74-79, 15 A.2d 184, 185-88 (1940); Clark’s Case, 124 Me. 47, 49-51, 126 A. 18, 19-21 (1924); 3 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 60.01 (2011) (identifying a list of similar factors, derived from the Restatement (Second) of Agency § 220 (1958), with which “practically every court in the Anglo-American world would agree”).

[¶ 37] Of particular note, we have reaffirmed the applicability of the eight-part test notwithstanding the absence of a written contract, or the expressed or contrary intentions of the parties. The need to carefully scrutinize the particular relationship in question has been aptly summarized as follows:

With the advent of social and labor legislation, ..., and other modern enactments drawing a distinction between independent contractors and employees, there has been an increasing effort on the part of employers to avoid both the financial cost and the bookkeeping and reporting inconvenience that goes with work[er]’s compensation, unemployment compensation, social security, and the like. This effort usually takes the form of subcontracting portions of the employer’s production and distribution process, particularly in peripheral areas like obtaining raw material, trucking, delivering and selling.... These arrangements are often carefully drawn with an eye to the “control” test....

Timberlake, 438 A.2d at 1298 (quoting 3 Arthur Larson & Lex K. Larson, Larson’s *420Workers’ Compensation Law § 62.01 (1980)).5

[¶ 38] In his decision, the hearing officer summarily concluded, after referencing section 102(11)(A), that “Doughty had no contract of hire with Poland Spring.” The hearing officer did not, as the Court suggests, “look[ ] to the Larson factors,” nor did he engage in any analysis regarding why there was no “contract of hire, express or implied” between Doughty and Poland Spring. By failing to make findings or engage in an analysis established by our prior opinions, and by relying upon section 104 to assign responsibility for compensation claims against Poland Spring to the referring agency’s carrier, the hearing officer misconceived the applicable legal standard in determining whether Doughty made “a contract of hire, express or implied” with Poland Spring.

[¶ 39] The Court correctly explains that we will vacate a hearing officer’s decision on the issue of employment status “only when it falls outside the decisional range in which reasonable [hearing officers], acting rationally, could disagree, or when a [hearing officer] misconceives the meaning of the applicable legal standard.” West, 670 A.2d at 937 (quotation marks omitted). Importantly, Doughty moved for additional findings of fact and conclusions of law pursuant to 39-A M.R.S. § 318 (2010); thus, “we do not assume that the Workers’ Compensation Board hearing officer made all the necessary findings to support its judgment.” Lavoie v. Re-Harvest, Inc., 2009 ME 50, ¶ 10 n. 2, 973 A.2d 760. Rather, we “review only the factual findings actually made and the legal standards actually applied by the hearing officer” to determine if they are sufficient, as a matter of law, to support the result and if they are supported by evidence in the record. Daley v. Spinnaker Indus., 2002 ME 134, ¶ 17, 803 A.2d 446 (quotation marks omitted).

[¶ 40] In the absence of necessary findings, the normal recourse would be to remand the matter to the hearing officer to make sufficient and clear findings of fact. See Harvey v. Dow, 2011 ME 4, ¶8, 11 A.3d 303 (“Where findings are infirm because of an erroneous view of the law, a remand is the proper course unless the record permits only one resolution of the factual issue.” (quotation marks omitted)). However, on this record the only conclusion that can be reached is that Doughty was an “employee” of Poland Spring. During pre-hearing discovery, Poland Spring admitted that Doughty (1) did not have a contract to perform piece work or work at a fixed price; (2) did not have the right to employ assistants; (3) was not responsible for furnishing tools, supplies, and materials; (4) was subject to Poland Spring’s control regarding the progress of his work and his schedule; (5) performed work that was part of Poland Spring’s regular business; and (6) was paid by time, not by the job. Applying the traditional test to these admitted facts can only lead to the conclusion that Doughty was an employee of Poland Spring.

B. Dual/Lent Employee Doctrine

[¶41] As set out in the Court’s decision, the doctrine of dual or lent employment, under which an individual may be the “employee” of two employers for purposes of the Workers’ Compensation Act, does not change the analysis. As Professor Larson has explained:

In one sense, the lent-employee doctrine is not a separate doctrine at all. Theoretically, the process of determining *421whether the special employer is liable for compensation consists simply of applying the basic tests of employment set out in an earlier chapter. If they are satisfied, the presence of a general employer somewhere in the background cannot change the conclusion that the special employer has qualified as an employer of this employee for compensation purposes.

3 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 67.01[2] (2011). Indeed, Professor Larson’s recommended test incorporates the very same language as the statutory definition of “employee” found in 39-A M.R.S. § 102(11)(A):

When a[n] employer lends an employee to another party, that party becomes liable for worker’s [sic] compensation only if
(a) the employee has made a contract of hire, express or implied, with the second employer;
(b) the work being done is essentially that of the second employer; and
(c) the second employer has the right to control the details of the work.

3 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, § 67.01[1] (2011) (emphasis added). Subsection (a) above contains the exact same language as Maine’s statute; therefore, the same test used in numerous Maine eases in determining whether a “contract of hire, express or implied” exists pursuant to section 102(11)(A) should be used in determining whether “a contract of hire, express or implied” exists in the dual/lent employment context.

[¶ 42] Doughty’s employment with Poland Spring meets section (a) of Larson’s test above because the language is identical to the language used in the Maine statute, and, as discussed in the previous section, Doughty meets the elements of the traditional approach. Doughty’s employment situation also meets the elements of section (b) and (c) of Larson’s test because the work being done was essentially that of Poland Spring and Poland Spring had the right to control the details of his work. The concept of the dual/lent employee doctrine applies to the facts of this case.

[¶43] The Michigan courts have also recognized the concept of dual/lent employment. Maine’s Workers’ Compensation Act is heavily derived from Michigan’s law and this Court has often considered Michigan decisions in interpreting Maine’s statute. See, e.g., Cavers v. Houston McLane Co., 2008 ME 164, ¶ 33, 958 A.2d 905; Guiggey v. Great N. Paper, Inc., 1997 ME 232, ¶ 9, 704 A.2d 375.

[¶ 44] In the Michigan case Renfroe v. Higgins Rack Coating & Manufacturing Co., Renfroe was assigned to work at Higgins Co. through a temporary employment agency. 17 Mich.App. 259, 169 N.W.2d 326, 327-28 (1969). After several weeks of working at Higgins Co., Renfroe was injured when his hand got caught in a punch press. Id. at 328. The court held that the defendant, Higgins Co., was immune from a tort suit because it was liable pursuant to workers’ compensation law. Id. at 329-30. The court reasoned that Renfroe agreed to work for Higgins Co. and Higgins Co. could direct and control Renfroe while working at the factory, and therefore found that both Higgins Co. and the temporary employment agency were employers of Renfroe. Id. at 330. Significantly, the court noted:

The economic reality of this case is that both [the temporary employment agency] and Higgins Co. were employers of ... Renfroe, each in a different way. It is not necessary to make fine semantic distinctions as to types of degrees of *422control, etc. It is enough to say that either could be liable under the workmen’s compensation act, therefore, both are protected by it.

Id. at 330.

[¶ 45] Professor Larson in his treatise, Larson’s Workers’ Compensation Law, identifies numerous cases from other jurisdictions that are similar if not identical to the facts of this case. 3 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, § 67.01[1] nn. 1-3 (2011). In Anderson v. Tuboscope Veteo, Inc., a labor broker provided temporary employees, including Anderson, to Tuboscope. 9 P.3d 1013, 1015 (Alaska 2000). The court held that Tuboscope was an employer of Anderson pursuant to the Alaska Workers’ Compensation Act because Tuboscope hired, trained, supervised, managed, and directed Anderson; therefore, there was an implied contract of employment. Id. at 1017-18. The court said that if “the temporary employer hires, trains, employs, directs, and reserves the right to terminate the temporary employee,” then a contract exists between the employee and the temporary employer, and the labor broker only acts as a “payroll and benefits administrator.” Id. at 1018.

[¶ 46] In Nation v. Weiner, a medical personnel company provided Nation to the hospital as a temporary nurse, and she had worked at the hospital for almost two years through the medical personnel company at the time she was injured. 145 Ariz. 414, 701 P.2d 1222, 1224 (Ariz.Ct.App.1985). The court held that the hospital was Nation’s employer for the purposes of workers’ compensation because the hospital had the right to control her work, she performed nursing services regularly provided at the hospital, and the length of her employment there suggested a work-for-hire situation. Id. at 1225-27. Citing Larson, the court said that Arizona courts have acknowledged that an employee may have two separate employers. Id. at 1225-26. In Whitehead v. Safway Steel Products, Inc., a temporary help agency assigned Whitehead to a job at Safway. 304 Md. 67, 497 A.2d 803, 805 (1985). The court held that Whitehead was an employee of Safway for workers’ compensation purposes, finding that there was a contract for hire because Whitehead consented to the special employment relationship, the work was a part of Safway’s regular business, and Safway had control over Whitehead. Id. at 811-12.

[¶ 47] In LaVallie v. Simplex Wire & Cable Co., LaVallie accepted an assignment at Simplex through a firm that provided temporary labor to other businesses. 135 N.H. 692, 609 A.2d 1216, 1217 (1992). The court held that LaVallie was an employee of Simplex for workers’ compensation purposes because LaVallie was under the direction of a Simplex foreman, Simplex had the right to terminate him, Simplex could control his work, and he consented to Simplex’s control. Id. at 1217-19. In Antheunisse v. Tiffany & Co., Tiffany orally contracted with a personnel agency for temporary help during the holiday season, and Tiffany screened and selected Antheunisse for this purpose. 229 N.J.Super. 399, 551 A.2d 1006, 1006-07 (N.J.Super.Ct.App.Div.1988). The court held that Tiffany was a special employer and therefore the remedy for Antheun-isse’s injuries was through workers’ compensation because Antheunisse impliedly contracted with Tiffany when she accepted the terms of the employment, her assignments were a part of Tiffany’s regular business, and she was under Tiffany’s direction and control. Id. at 1007-08.

[¶ 48] In Martin v. Phillips Petroleum Co., Martin worked at Phillips for over a year, although he was employed by a company that provided laborers to oil refiner*423ies and other industries. 42 Cal.App.3d 916, 117 Cal.Rptr. 269, 270 (1974) overruled by Kowalski v. Shell Oil Co., 23 Cal.3d 168, 151 Cal.Rptr. 671, 676 n. 9, 588 P.2d 811 (1979) (holding that the ability of a special employer to remove an employee “does not necessarily indicate the existence of a special employment relationship,” but upholding the concept of duel/lent employment). The court held that although Martin was injured in a locker room provided by the employment agency but located on Phillips’s work site, Phillips was a special employer for workers’ compensation purposes because Martin worked there for at least a year, he was subject to the control of Phillips’s foreman, all of the tools and safety equipment were provided by Phillips, Phillips had the right to request that the employment agency take Martin off of the job, and Phillips supervised and controlled the details and the quality of the work.6 Martin, 117 Cal.Rptr. at 272-73. Finally, in Russell v. PPG Industries, Inc., Russell worked for a construction company that contracted with PPG to work on new equipment at a plant. 953 F.2d 326, 328 (7th Cir.1992). The court held that Russell was a loaned employee for workers’ compensation purposes because PPG exercised control over Russell, PPG directly supervised him, and PPG treated him as if he were a regular employee. Id. at 328-31.

[¶ 49] Many of these cases arise in the context of a civil lawsuit, usually negligence, against the special employer rather than against the referring temporary staffing agency. They provide the same protection afforded by section 104 to companies that hire temporary employees through staffing agencies, holding that the injured worker’s remedy is limited to a workers’ compensation claim against the special employer rather than a civil suit. These cases demonstrate that it is not logical or consistent to hold that a worker is an employee for purposes of the civil suit immunity provision of the workers’ compensation law but not an employee for purposes of claiming benefits under the workers’ compensation law. Poland Spring should not be permitted to be Doughty’s employer when it is to their advantage, but not his employer when Doughty is seeking workers’ compensation benefits.

[¶ 50] Doughty’s situation fits the definition of a dual/lent employee. Even though he was under contract and was paid by Work Opportunities, Poland Spring controlled all aspects of his employment. As set out under the traditional test: “In one sense, the lent-employee doctrine is not a separate doctrine at all. Theoretically, the process of determining whether the special employer is liable for compensation consists simply of applying the basic tests of employment set out in an earlier chapter.” 3 Arthur Larson & Lex K. Larson, Larson's Workers’ Compensation Law § 67.01[2] (2011).

C. Maine Human Rights Act

[¶ 51] The Court’s decision makes much of the fact that Doughty has a remedy pursuant to the Maine Human Rights Act (MHRA). He does not have a remedy if he fits the definition of an employee *424under the Act. Section 4572(1)(A)(1) states: “This paragraph [Unlawful Discrimination] does not apply to discrimination governed by Title 39-A, section 358.” 5 M.R.S. § 4572(1)(A)(1) (2010).

[¶ 52] We shed some light on the scope of this subsection in Laskey v. Sappi Fine Paper, when we held that this exclusion under the MHRA exempts “only those claims for discrimination which arise in any way for testifying or asserting any claim under the Workers’ Compensation Act.” 2003 ME 48, ¶ 14, 820 A.2d 579 (quotation marks omitted). This is exactly what Doughty claimed in his petition. Question 2 of the petition asks how the employer discriminated and Doughty’s petition states: “For claiming a workers’ compensation injury.” Therefore, since Doughty is an employee asserting that Poland Spring discriminated against him because he made a workers’ compensation claim,7 he is foreclosed from filing any claim with the Human Rights Commission pursuant to section 4572(1)(A)(1).

II. CONCLUSION

[¶ 53] By affirming the hearing officer’s decision, the Court is opening a loophole through which businesses may avoid workers’ compensation liability for discrimination or reinstatement by hiring workers through temporary staffing agencies. Except for the fact that Work Opportunities paid him, Doughty’s relationship with Poland Spring was no different than his co-workers who were paid directly by Poland Spring. This arrangement creates a separate class of workers, who, though working side-by-side with other Poland Spring workers, are not afforded the same benefits, protections, and rights. Though Doughty’s employment at Poland Spring through Work Opportunities affords him certain protections, he would be precluded, unlike many of his co-workers, from pursuing meaningful relief against Poland Spring. Although section 104 mandates that Work Opportunities provide workers’ compensation coverage for employees referred to the workplace of Poland Spring as a condition for immunity from civil suits for workplace accidents at Poland Spring, and although Doughty received weekly benefits through Work Opportunities’ insurance carrier, it does not remove Poland Spring’s obligation to Doughty for workers’ compensation benefits. Under the dual/lent employee doctrine either employer could be responsible for the employee’s workers’ compensation benefits. It is up to the insurance carriers to underwrite the coverage under these circumstances, and it should not be this Court’s concern to interpret the law dependent upon how the insurance companies will handle the underwriting. Work Opportunities may be able to provide monetary benefits through its insurance carrier, and in such cases it would not make any difference to Doughty; however, Work Opportunities’ insurance carrier cannot replace Poland Spring’s underlying obligation for certain workers’ compensation benefits such as petitions for reinstatement (pursuant to 39-A M.R.S. § 218 (2010)) with Poland Spring or for discrimination (pursuant to 39-A M.R.S. § 353) by Poland Spring.

[¶ 54] If the Legislature had intended to exclude temporary agency-referred workers from the statutory definition of “employee,” it could very easily have done so. Section 102 contains over ten excep*425tions to the definition of “employee.” See 39-A M.R.S. § 102(11)(A)-(E) (2010). As things stand, there is no exception for workers hired through temporary help staffing agencies, and our action today will in effect engraft upon the statute another exception.

[¶ 55] It should take a clear legislative mandate for this Court to interpret legislation in a way that would limit workers’ rights and benefits. The Legislature, in affording employers who hire through temporary staffing agencies protection from civil lawsuits by passing section 104, did not intend to eliminate an employee’s right to pursue workers’ compensation benefits for injuries suffered while working for the employer who is in control of the workplace and the working conditions.

[¶ 56] Whether we analyze the facts pursuant to the traditional test or pursuant to the dual/lent employee doctrine, Doughty was an employee of Poland Spring. As the facts are undisputed, I would conclude that Doughty was an employee of Poland Spring as a matter of law, and would remand the matter to the hearing officer for further proceedings on Doughty’s petition against Poland Spring to remedy discrimination.

. This language remains unchanged in Larson's current treatise. 3 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 62.01 (2011).

. The Martin court also held that even though the legislature, in the insurance code, recognized the respective liabilities of insurance carriers in a general-special employer situation by providing that the general employer is liable for the entire cost of compensation unless the special employer had the employee on its payroll, it does not purport to abrogate the liability of the special employer. Martin v. Phillips Petroleum Co., 42 Cal.App.3d 916, 117 Cal.Rptr. 269, 272 (1974). Thus, the employee has the benefit of having the special employer as an additional party responsible for any industrial accident that he suffers on that employer’s job. Id.

. In Shaver v. Poland Spring Bottling Corp., the Workers' Compensation Board determined that, when the employee gave notice of his injury, he was in fact "reporting a claim" pursuant to the Workers' Compensation Act, section 353. W.C.B. 320-06-01 (Me.App.Div.2006).