concurring
I concur. However, I write separately to emphasize that only the unique circumstances of this case cause me to agree that the plaintiffs were not employees of ESI, and as such, that the plaintiffs may not collect unpaid wages, along with statutory damages and attorney’s fees, from ESI.
“A person may be the employee of two employers, not joint employers, at one time as to one act, if the service to one does not involve abandonment of service to the other.” Mannon v. Howmet Transport Service, Inc., 641 N.E.2d 70, 73 (Ind.Ct.App.1994), reh. denied. In cases involving leased employees, employees will often have sufficient connection with both the lessor and the lessee to be considered employees of both. Here, however, the plaintiff employees had very little connection to ESI. The only evidence indicating that the plaintiffs had any knowledge of ESI prior to CSX going out of business was the fact that ESI’s name appeared on their payroll checks for several weeks prior to May 3, 1996. This is simply not enough to create an employer-employee relationship between ESI and the plaintiffs.
The fact that ESI was not the plaintiffs’ employer does not mean that it had no responsibility to the employees of CSX. That responsibility, however, was of a moral nature, not a legal one.