Whitehead v. Safway Steel Products, Inc.

ELDRIDGE, Judge,

dissenting.

I disagree with the Court’s determination that, as a matter of law, “a person who is employed by a temporary services agency is also an employee of the company to which he is provisionally assigned.” Although some other jurisdictions might be “generally in accord” with the majority’s view,1 I am nonetheless convinced that Maryland law and the facts of this case require a different conclusion.

(1)

Preliminarily, I question the majority’s discussion of two “lines of cases” dealing with whether the determination of the employer-employee relationship is a legal or factual one. The Court has not previously perceived any divergence in Maryland case law regarding the test to be applied in deciding whether an issue is a legal or factual one, and I *86perceive no such divergence. In Talley v. Dept. of Correction, 230 Md. 22, 28-29, 185 A.2d 352 (1962), a case dealing with whether a Workmen’s Compensation claimant had suffered a compensable injury, the Court set forth the applicable standard as follows:

“[WJhere the facts are conceded, undisputed, or uncontroverted, and the inferences to be drawn therefrom are plain, definite and undisputed ..., their legal significance is a matter of law to be determined by the court, but where the facts, or inferences therefrom, or both, are in dispute, such questions are to be determined by a jury (or where the case is submitted to the court, by the judge as questions of fact, not of law).... ”

In explaining the test, the Court relied on Moore v. Clarke, 171 Md. 39, 187 A. 887 (1936); Barnes v. Myers, 163 Md. 206, 161 A. 279 (1932); Beyer v. Decker, 159 Md. 289, 150 A. 804 (1930); Harrison v. Central Construction Co., 135 Md. 170, 108 A. 874 (1919); and L. & S. Co. v. State Accident Fund, 221 Md. 51, 155 A.2d 653 (1959). Although the majority opinion here cites these same cases as espousing “two tests,” the Court in Talley saw no disharmony whatsoever in them. In light of the case law, discussion of “two tests” is confusing.

(2)

As the majority notes, the criteria usually examined to determine whether an employer-employee relationship exists, listed in Mackall v. Zayre Corp., 293 Md. 221, 230, 443 A.2d 98 (1982),

“include (1) the power to select and hire the employee, (2) the payment of wages, (3) the power to discharge, (4) the power to control the employee’s conduct, and (5) whether the work is part of the regular business of the employer. The decisive test in determining whether the relation of employer and employee exists is whether the employer has the right to control and direct the employee in the performance of the work and in the manner in which the work is to be done.”

*87The majority, relying on language in Mackall, L. & S. Co., supra, 221 Md. at 57, 155 A.2d 653, and Keitz v. National Paving Co., 214 Md. 479, 134 A.2d 296, 136 A.2d 229 (1957), asserts that the fourth criterion, “the factor of control,” is “for our purposes, ‘decisive,’ ... ‘controlling,’ ... ‘conclusive,’ ‘determinative,’ and ‘definitive.’ ” The Court takes the position that, once the factor of control is established, the one exercising control is an employer as a matter of law. Largely equating the power to control the employee’s conduct with the power to control the performance of specific tasks, the majority concludes “that the control exercised by Safway over Whitehead clearly establishes an employer/employee relationship.” Maryland case law provides no support for this reasoning or conclusion.

First, the Court has in the past been unclear whether the factors such as the right to hire and discharge indicate a right to control or whether the right to control is a criterion separate and distinct from the other factors. Compare L. & S. Co., 221 Md. at 57, 155 A.2d 653, with Thompson v. Paul C. Thompson & Sons, 258 Md. 391, 395, 265 A.2d 915 (1970). The cases are consistent, however, in that, regardless of the way the Court has viewed the control criterion, all of the factors are given weight in determining the employer-employee relationship. See, e.g., Mackall, supra, 293 Md. at 231, 443 A.2d 98; Thompson, supra, 258 Md. at 396, 265 A.2d 915; Marine v. Service Trucking Co., 225 Md. 315, 321, 170 A.2d 188 (1961); L. & S. Co., supra; Snider v. Gaultney, 218 Md. 332, 337-338, 146 A.2d 869 (1958); W.J. Dickey v. State Tax Comm., 212 Md. 607, 611-612, 131 A.2d 277 (1957); Charles Freeland v. Couplin, 211 Md. 160, 170-172, 126 A.2d 606 (1956); Sun Cab Co. v. Powell, 196 Md. 572, 578-582, 77 A.2d 783 (1951).

Second, the cases cited by the majority make clear that the control factor is decisive only in the sense that evidence of control will support a determination by the trier of facts that an employer-employee relationship existed. In Mackall, supra, 293 Md. 221, 443 A.2d 98, the Court decided that the plaintiff could simultaneously be the employee of *88two employers. The employee in that case worked for a company, Alden, which rented a concession stand for the sale of wigs in a Zayre department store. Immediately after listing the five criteria and commenting that the decisive test is whether the employer has the right to control and direct the employee, the Court applied all of the criteria:

“Here there was evidence to show that both Alden and Zayre participated in the selection and hiring of Mackall. Both participated in the payment of her wages. Both had the power to discharge her. The retail sale of wigs and millinery was a part of the regular business of both. Most important, there was evidence to show that both exercised control over Mackall in the performance of her duties.” Id. at 231, 443 A.2d 98.

The Court concluded:

“The evidence was more than sufficient to support an inference that both Alden and Zayre simultaneously were Mackall’s employers. Thus, the question whether the employer-employee relationship existed was a question of fact to be determined by the jury. Id. (Emphasis added.)

In L. & S. Co., supra, 221 Md. 51, 155 A.2d 653, the Court was presented with the question whether, at the time he was fatally injured, a tractor operator was the employee of L. & S. Construction Company, of Weygandt Engineering and Construction Company, or of both. L. & S. had furnished the tractor and operator to Weygandt, and the operator was killed while performing work for Weygandt. The case was tried before the court, and evidence was introduced to show that Weygandt directed the employee in the performance of his work. Despite this evidence, the trial judge found as a fact that L. & S. was the sole employer of the deceased when the accident happened. On appeal, this Court held that the evidence of control by L. & S., coupled with its hiring, payment of wages and right to dismiss the employee, was sufficient to support the trial court’s factual determination.

*89In Keitz, supra, 214 Md. 479, 134 A.2d 296, 136 A.2d 229, the issue was whether the driver of a dump truck owned by the driver’s general employer, Sudbrook, was also the employee of National Paving Company, the company to which the truck and the employee’s services had been furnished. While hauling for National, the employee was involved in a traffic accident, injuring another driver. The Court, in holding that the trial court had erred in directing a verdict that National was not the truck driver’s employer, pointed to the following evidence in the case:

“After Redmond Sudbrook ascertained the number of trucks National wanted for the next day’s work, he told the drivers in the evening what they were supposed to do the following morning, and if they were told to go to National or to haul asphalt for, or bring stone or dust from the quarry to, National, anyone in authority at National could tell them what to do. In fact, it was ‘agreed on’, a ‘regular part of the procedure’, and ‘by agreement’ that Sudbrook’s drivers were to take and obey whatever orders or instructions were given them by National’s superintendents or other supervisory personnel.”

The Court listed the five criteria which may be considered in determining the existence of the employer-employee relationship and discussed the “decisive” test of the right to control the servant. The Court noted that, based on the testimony,

“the jury might have concluded, that National and its superintendents had an almost unlimited right to control and direct Ogle in the performance of National’s work, once he had reported to National. While his principal duties involved hauling from three different sources, there is nothing in the testimony that states that it was not at liberty to require of him trips elsewhere. Sud-brook’s trucks ran side by side with National’s in the performance of National’s business. Ogle stated that ‘whatever National’s superintendent told (him) to do, (he) would do’. This clearly seems to have permitted National a wide latitude in controlling and directing his work, such *90as is anticipated in the relationship of master and servant.” Id. at 492, 134 A.2d 296, 136 A.2d 229.

The Court concluded that this evidence of control and direction “was legally sufficient ... to require the submission to the jury of the question whether [the employee] was the servant of National when the accident occurred.” 214 Md. at 493, 134 A.2d 296, 136 A.2d 229 (emphasis added).

A case not discussed by the majority, Charles Freeland v. Couplin, supra, 211 Md. 160, 126 A.2d 606, decided whether a person killed in a logging accident was an employee or an independent contractor. The deceased, Ernest M. Couplin, had been hired to cut timber on Freeland’s land. The trial court had submitted the issue to the jury after denying Freeland’s prayer for a directed verdict. In addition to the five factors previously mentioned, the Court listed a sixth which may be considered in determining the existence of an employment relationship, namely “whether or not the parties believe they are creating the relationship of master (employer) and servant (employee).” 211 Md. at 170, 126 A.2d 606. On the question of control, the Court commented that the facts seemed

“to indicate control that could not be exercised over an independent contractor who was being paid only by the ton for cut timber. Freeland, as owner, was interested in getting as much as possible out of the standing timber, and therefore controlled the cutting to that end. Legally, as owner of timber he had the absolute right to exercise complete control over the cutting. And he exercised such right with reference to what was to be cut, approximately when it was to be cut (though Couplin chose his own working hours) and that the cutting was done according to specifications and without wastage.” Id. at 171, 126 A.2d 606 (emphasis added).

The Court, finding evidence of five of the six factors it listed, held that the trial court had properly denied the directed verdict prayer. The Court did not, despite the *91overwhelming evidence of control, hold that Freeland was, as a matter of law, Couplin’s employer.

The majority also cites L. & S. Co., supra, 221 Md. at 56, 155 A.2d 653, for the proposition that “the power to hire or discharge a worker can be vested in one person and the power of control in another, and that in such a case the person having the power of control is the master.” This proposition was stated originally in Sun Cab Co. v. Powell, supra, 196 Md. at 578, 77 A.2d 783. In context, it lends no support to the majority’s position. In Sun Cab Co., the Court recognized the possibility that a contract might give one person the power to hire and discharge and vest complete control in another. In such a situation, where there is no question that the employee is somebody’s employee, the one who exercises no control cannot, as a matter of law, be an employer or master. For other examples of this principle, see Auto. Trade Ass’n v. Harold Folk Enter., 301 Md. 642, 660-661, 484 A.2d 612 (1984); B.P. Oil Corp. v. Mabe, 279 Md. 632, 637-643, 370 A.2d 554 (1977); Stem v. Nello L. Teer, 213 Md. 132, 139, 130 A.2d 769 (1957); Globe Indemnity Co. v. Victill Corp., 208 Md. 573, 585, 119 A.2d 423 (1956); Washington News Co. v. Satti, 169 Md. 489, 492, 182 A. 286 (1936); Bell v. State, 153 Md. 333, 342, 138 A. 227 (1927). Deford v. State, Use of Keyser, 30 Md. 179, 203-204 (1869). Until today, no Maryland case has held that, just because someone exercises control, he must, as a matter of law, be an employer. These cases point out the illogic of the majority’s opinion. The majority states that Safway possessed “all” or “absolute” control of Whitehead in the performance of his job. If so, Bay could have exercised no control in this respect. Therefore, Bay could not as a matter of law be Whitehead’s employer. Yet, the majority states that Bay was also Whitehead’s employer.

Finally, this Court could be no clearer in stating a proposition than when it held, in L. & S. Co., supra, that

“[t]he fact that control over details as to what work is to be done and the way in which it is to be done may be exercised by the person to whom the employee is sent, *92will not of itself cause the employee to become the servant of the person to whom he is sent.” 2

Assuming arguendo that Safway’s control over details was greater than the control in L. & S. Co., this aspect is, of itself, not enough to establish an employment relationship as a matter of law in the instant case.

Turning to the specific facts of the present case, Bay Services selected Whitehead and sent him to Safway. Bay paid Whitehead’s wages. Whitehead was paid much less than Safway’s employees. Bay had the right to fire Whitehead, Safway having the right only to dismiss him from the job at Safway. Safway controlled Whitehead’s conduct only as to assigning specific tasks. Whitehead received no fringe benefits whereas Safway employees did. All of Safway’s employees were union members; Whitehead was not. Bay, as a matter of policy, called each day to every company to which it sent workers to determine if the workers were performing satisfactorily. The jury could easily have inferred from this that, if a worker were doing an unsatisfactory job, Bay would correct the situation. Additionally, a company to which Bay sent a worker had no authority, without first getting permission from Bay, to ask that worker to return the following day. Moreover, the plaintiff produced some evidence that Bay considered itself the plaintiff’s exclusive employer and that Safway did not consider itself his employer. As the majority notes, “[t]he parties’ subjective beliefs” in this area are “not dispositive.” Nevertheless, it has been recognized that such subjective beliefs are evidence of a party’s right to control another. 1 Restatement (Second), Agency, § 220 comment m (1958). See Anderson Nurs. Homes v. Walker, 232 Md. 442, 444, 194 A.2d 85 (1963) (belief of the parties is a criterion to be used in determining employer-employee relationship); *93Charles Freeland v. Couplin, supra, 221 Md. at 170, 126 A.2d 606 (belief of parties is to be considered).

It is true that the basic facts relating to Whitehead’s relationship to Bay and Safway were undisputed. Moreover, this may not be a case where any individual fact leads to conflicting inferences. Nevertheless, it is a case where some undisputed facts lead to one inference and other undisputed facts lead to a different inference. For example, Bay’s hiring of Whitehead and payment of his wages lead to the inference that Bay and not Safway was Whitehead’s employer. Similarly, the difference in salaries between Whitehead and Safway employees, Whitehead’s lack of employment benefits as compared to Safway employees, his non-union status, the understanding of the parties, etc., all lead to the inference that Safway was not Whitehead’s employer. On the other hand, Safway’s direction of Whitehead on the job and the fact that the work Whitehead did was part of the regular business of Safway support an inference that Safway was Whitehead’s employer. In several recent cases, in various contexts, this Court has emphasized that such conflicting inferences are for the trier of facts to resolve. See, e.g., Board of Educ., Mont. Co. v. Paynter, 303 Md. 22, 491 A.2d 1186 (1985); Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 490 A.2d 1296 (1985); Balto. Lutheran High Sch. v. Emp. Sec. Adm., 302 Md. 649, 490 A.2d 701 (1985); Comptroller v. Haskin, 298 Md. 681, 472 A.2d 70 (1984).

The evidence Whitehead produced was sufficient to support a jury conclusion that Safway’s control over him was minimal and that Bay was his exclusive employer. I would hold that the trial court erred in granting the motion for judgment n.o.v.3

*94Judge R0D0WSKY has authorized me to state that he concurs with the views expressed herein.

. But see 1C Larson, Workmen’s Compensation Law (1982), § 48.23, pp. 369-373 and cases there cited (“there is substantial contra authority”). See, e.g., Hill v. Erdle Perforating Company, 53 A.D.2d 1008, 386 N.Y.S.2d 265 (1976), where the court, on facts substantially the same as those in the present case, held that the question was one of fact for the jury to decide.

. The Court in L. & S. Co. did not, as the majority suggests, confine this rule to cases involving the lending of machinery along with an employee to operate it.

. Moreover, if the majority is correct that this case presents an issue of law, the legal conclusion would appear to be contrary to that *94reached by the majority. While not dealt with in the trial court or on appeal, the facts of this case present the issue of whether Whitehead was a casual employee of Safway, thus making worker’s compensation provisions inapplicable under Maryland Code (1957, 1979 Repl. Vol.), Art. 101, § 67. In Wood v. Abell, 268 Md. 214, 300 A.2d 665 (1973), this Court held that an employee hired for various odd jobs not to exceed one or two weeks with no promise of future or continuous employment was as a matter of law a casual employee and thus his survivors were not barred from maintaining a third party action against his casual employer. See also 1C Larson, supra, note 1, § 51.12.