358 F.3d 241 | 3rd Cir. | 2004
OSCAR J. BOLDT CONSTRUCTION RENDELL, Circuit Judge.
COMPANY;
MARCAL PAPER MILLS Lawrence Marino, an electrician employed by Kleinknecht E lectric Company (“KEC”), was injured on August
Appeal from the United States District 7, 1998, in an accident during construction Court for the District of New Jersey at the Marcal Paper Mills in Elmwood (D.C. Civil No. 99-cv-04002) Park, New Jersey. At issue in this appeal District Judge: Honorable is whether Marino, who was working with Dickinson R. Debevoise riggers on a task associated with the
construction project at the time of his injury, should be deemed a “special
Argued November 20, 2003 employee” of the rigging company under New Jersey law. Because our jurisdiction Before: RENDELL, BARRY and is based on the diversity of citizenship of the parties, [1] and New Jersey law applies, [2] MAGILL*, Circuit Judges. (Filed February 19, 2004) [1] The District Court had jurisdiction over Marino’s negligence action under 28 U.S.C. § 1332(a)(1), as Marino is a citizen *Honorable Frank J. Magill, Senior of New York, ICR is a New Jersey Circuit Judge for the Eighth Circuit, corporation with its principal offices in sitting by designation. Mahwah, New Jersey, and the amount in our task is to predict how the courts of I. New Jersey would resolve this issue if
In order to gain a contextual presented with these facts. orientation, before exploring the facts, we We do not write on a clean slate, as will review the basic principles underlying the courts of New Jersey have spoken on this issue. The New Jersey courts have this general issue several times, and we made it clear that special employer cases have recently addressed this issue applying like this one are set against the backdrop New Jersey law. The application of the of New Jersey’s statutory workers’ law to the specific facts of Marino’s work compensation scheme, set forth in the situation requires a careful analysis of the Workmen’s Compensation Act (“WCA”), principles developed in the case law N.J. Stat. Ann. §§ 34:15-1 to -142. See, related to “special employment” situations. e.g., Santos v. Standard Havens, Inc., 541 The District Court held that, applying A.2d 708, 712 (N.J. Super. Ct. App. Div. those principles, Marino was a “special 1988) (discussing the W CA and its employee” of the defendant, Industrial definition of employees who are covered Crating and Rigging Company (“ICR”). by the Act). Therefore, we must first have Since special employee status precludes an understanding of the WCA and the the bringing of a negligence action against policies behind it. the special employer, the District Court
In New Jersey, employees who are granted summary judgment in favor of injured while working are to receive ICR and dismissed M arino’s action with workers’ compensation benefits without prejudice. We predict that the New Jersey regard to fault. Gore v. Hepworth, 720 Supreme Court would conclude otherwise, A.2d 350, 353 (N.J. Super. Ct. A pp. Div. and will accordingly reverse and remand 1998). When an employee receives so that the matter may proceed to trial. workers’ compensation benefits, he forgoes the right to seek additional tort remedies from his employer. Id. This waiver of remedies is explicitly detailed in the exclusivity provision of the WCA
controversy exceeds $75,000. We have itself: “Such agreement [to accept WCA jurisdiction over the appeal of the District benefits] shall be a surrender by the parties Court’s final order pursuant to 28 U.S.C. § thereto of their rights to any other method, 1291. form or amount of compensation or determination thereof than as provided in [2] As the District Court’s jurisdiction [the WCA], and shall bind the employee . over this matter was based on diversity, the . . as well as the employer . . . .” N.J. Stat. law of the forum state, New Jersey, applies Ann. § 34:15-8. on the substantive issue of special employment. Erie Railroad Co. v.
The WCA was enacted as a Tompkins, 304 U.S. 64, 78 (1938). mechanism that would protect employees 228 A.2d 711, 713 (N.J. Super. Ct. App. who are injured in the workplace. Div. 1967). The result of this broad However, another important objective of definition is that the acceptance of the WCA was to pass along the costs of workers’ compensation benefits from one industrial accidents “as part of the cost of employer will preclude a common law tort the product or service provided.” Santos, action brought by the employee against 541 A.2d at 712. Thus, New Jersey courts another employer. Id. The courts of New have liberally construed the term Jersey, in analyzing situations in which an “employee” in the WCA “in order to bring employee might be found to have, in as many cases as possible within [its] addition to his primary employer, an scope.” Id. This is true when a plaintiff additional “special employer,” have seeks its protection, as well as “when he developed a five-factor test. This test, attempts to have himself excluded from based on a treatise on workers’ the coverage of the act.” Id. at 713 compensation, was first articulated and (quoting Rutherford v. Modern Transp. explained in Blessing. Co., 320 A.2d 522 (N.J. Super. Ct. Law
The five factors of the test are Div. 1974)). summarized as follows: 1) whether there is In construing the term “employee” an express or implied contract for hire liberally, New Jersey courts have made it between the employee and the employer; clear that an employee may have several 2) whether the work being done is that of employers for WCA purposes, any one of the employer; 3) whether the employer has which may be held liable for workers’ a right to control the details of the work; 4) compensation benefits when that employee whether the employer pays the employee’s is injured. [3] Blessing v. T. Shriver & Co., wages or benefits; and 5) whether the
employer can hire or fire the employee. Blessing, 228 A.2d at 713 (relying in part [3] An employee with multiple on 1A Arthur Larson, Workmen’s employers for WCA purposes is essentially Compensation § 48.00, at 710 (1966)). free to choose the one employer from None of these factors is necessarily whom he will receive his workers’ dispositive, and not all five must be compensation benefits. Once he has been
satisfied in order for a special employment awarded benefits, he may not seek relationship to exist. Id. at 715. However, identical benefits from another one of his
several courts have emphasized the employers, nor may he pursue a common law tort action against any of his employers. N.J. Stat. Ann. §§ 34:15-7, -8. a s pa rtie s to the co mp ensa tion However, if multiple employers are found, proceedings. See Conway v. Mister the employer who is ordered to pay the Softee, Inc., 225 A.2d 707, 708-09 (N.J. benefits may seek pro rata contribution Super. Ct. App. Div. 1967), aff’d, 239 from the other employers if they are joined A.2d 241 (N.J. 1968). importance of the third factor – the right to subcontracted with ICR for its assistance control. See, e.g., Volb v. Gen. Elec. with the installation and rigging of heavy Capital Corp., 651 A.2d 1002, 1005 (N.J. electrical switchgear sections, which had 1995) (stating that “the most important to be hoisted to the second floor of a factor in determining a special employee’s building on the site and moved to their status is whether the borrowing employer point of installation. W hile the had the right to control the special subcontract specifically delegated to ICR employee’s work”); Mahoney v. Nitroform the rigging work involved in the project, Co., 120 A.2d 454, 458 (N.J. 1956) KEC bore ultimate responsibility for the (describing the right to control as completion of this and all other aspects of “ e s s e n t i a l t o t h e e m p l o ym e n t the project pursuant to its contract with relation[ship]”); Blessing, 228 A.2d at Marcal. 713-14 (noting that the “sheer weight of
The two unions involved in the authority” regarding the predominant Marcal project – the IBEW representing element of the special employment test “is the electricians, and the International undoubtedly on the side of ‘control’”). It Association of Bridge, Structural, and is within this statutory and precedential Ornamental Iron Workers (“Iron Workers’ framework that we analyze whether Union”) representing the riggers – have Marino was a special employee of ICR at had a written agreement in place since the time of his injury. 1950 outlining the types of work that fall within the jurisdiction of electricians, and the types that are properly assigned to
II.
riggers, or iron workers. However, as the Keeping these principles in mind, District Court noted, the work performed we will move on to consider the factual by electricians and riggers on a project like setting of Marino’s work and the accident. the one at the Marcal site can often At the time of his injuries, Marino was a overlap. The parties have conceded that journeyman electrician and a member of the unions commonly encounter situations, Local 363 of the International Brotherhood often involving the moving and installation of Electrical Workers (“IBEW”). The of heavy electrical equipment, in which the accident occurred while he was employed work at issue is not easily classified as by KEC as an electrician who was falling within the exclusive jurisdiction of assigned to work on a project at Marcal’s either electricians or riggers. Elmwood Park plant. Marcal had
To deal with this kind of hybrid contracted with KEC to perform the situation, and to avoid costly and time- electrical work associated with a major consuming jurisdictional disputes, the two construction project that would expand unions over time developed an informal Marcal’s facilities and add new machinery practice of creating what they term to its existing plant. KEC, in turn, had “composite crews,” using an equal number of workers from both unions, to work the past, but had never before worked on together to perform the discrete hybrid one with ICR riggers at the Marcal site. tasks. The parties refer to this practice as
All parties agree that Michael the “composite crew agreement,” although Ruane of ICR took charge, directing the no written agreement exists, and there is composite crew and instructing Marino no specific understanding as to how tasks and DiNardo about details such as where are to be performed or which union is in to place their hands and in which direction charge of overseeing the tasks. Because the team should move. The crew moved the hoisting and moving of the switchgears the first section of the equipment into at the Marcal site involved both the place without incident. The accident movement and installation of electrical occurred while the crew moved the second equipment, as well as the rigging and section of the switchgear. After hoisting hoisting of that equipment, supervisors the second piece up to the second floor, the from the two companies working on the crew disconnected the rigging and site determined that it fell into this positioned four metal skates beneath the category of hybrid work. Thus, based on switchgear so that they could roll it to its the composite crew agreement, they final position, where it was to be installed. formed a group of four workers – two As the men were rolling the switchgear from each union – to perform the discrete across the floor, they reached a point task of lifting and moving the three where the skates supporting the switchgear switchgear sections involved. This all stopped rolling and a skate had to be occurred on August 7, 1998, the day of the repositioned. At the time, DiNardo was accident. supporting the left side of the switchgear, Prior to that date, Marino had been which was to be lifted with a jack, and performing electrical work for KEC at the Patrick Ruane was on the right side. Marcal site for several weeks. On August Michael Ruane told Marino to place a 7, Marino spent the morning performing skate under the switchgear, halfway down work that was typically assigned to him as its ten-foot length, and to stand between an electrician. Sometime before 11 a.m., the switchgear and a nearby wall in order Marino’s KEC supervisor instructed him to do so when the others raised the unit. and another KEC electrician, Pat DiNardo, As the crew lifted the switchgear and to work with two ICR riggers, Michael and Marino began to reposition the skate, the Patrick Ruane, to move the switchgear switchgear began to tilt. Before the men sections to the point of installation. ICR could stabilize it, the 4,600-pound did not request Marino by name or switchgear fell over, pinning Marino approach him specifically to ask him to against the wall and leaving him with work on the composite crew. Marino’s serious and permanent injuries. At the testimony reveals that he had worked on time of the accident, Marino had been composite crews moving switchgears in working on the composite crew for approximately two hours. complaint alleged that the accident was
primarily caused by the negligence of ICR, During the course of the project at in its failure to select safe methods for the Marcal site, ICR made no contributions moving the switchgear, and secondarily to Marino’s wages, benefits, or payroll caused by the negligence of Marcal, in its taxes, nor did it pay any fee to KEC as failure to adequately supervise ICR’s compensation for Marino’s assistance with conduct at the construction site. At the this one discrete task. As we have conclusion of pretrial discovery, ICR filed indicated, there was no written agreement a motion for summary judgment, [5] arguing governing the composite crew arrangement that, under New Jersey law, Marino was a that was being employed at the time of the “special employee” of ICR at the time of accident, and the oral decision to combine the accident, and was therefore precluded the unions’ forces was general in nature. by the WCA from pursuing a negligence It did not indicate that KEC electricians action against ICR. became “employees” of ICR while they served on composite crews, or vice versa, After hearing oral argument on the nor did it declare that ICR supervisors and motion, the District Court granted the employees would have the right to control motion and issued a written opinion on such situations, or vice versa. Further, August 21, 2001. In granting ICR’s there could be no formal assignment of motion, the District Court focused on employees of one company to the other Marino’s statements in interrogatories and because each was signatory to a collective depositions, which indicated that he knew bargaining agreement that prohibited it that while he served on the composite from assigning, transferring, or subletting crew, he would be “under the supervision, employees to another company that did not direction and control of [ICR].” In the recognize the relevant union as the District Court’s view, these statements collective bargaining representative of indicated that Marino consented to being those employees.
M a r i n o r e c e i v e d w o r k e r s ’ appellant in this opinion, but the impact of compensation benefits from his employer, our decision here will extend to cover his KEC, and then instituted a personal injury wife’s claim as well. action against Marcal and ICR in the United States District Court for the District [5] Marcal also filed a motion for of New Jersey on August 24, 1999. [4] The summary judgment, but its motion was denied. Marcal prevailed at trial, where the jury determined that Marcal was [4] Marino’s wife was also a plaintiff negligent, but that its negligence was not in the action, asserting a separate claim for the proximate cause of Marino’s injuries. loss of consortium. For ease of reference, Thus, no issues related to the claims we will refer to Marino as the plaintiff and against Marcal are raised on appeal. loaned to ICR, thus forming an implied Applying this standard to the facts employment contract. The District Court before us, we find that no genuine issues also found that Marino was performing “a of material fact remain. However, as we job that could only lie within ICR’s proper will discuss below, an analysis of the purview,” and that his actions were undisputed facts under New Jersey law directed and defined by ICR employees. regarding special employer situations leads Thus, although the court noted that ICR us to reach a conclusion here that is the did not pay Marino and that it could not opposite of that reached by the District hire or fire him, the District Court found Court. that, looking at all five factors together,
B.
Marino should be deemed a special employee of ICR when he was injured. There are essentially two types of Marino filed this timely appeal. fact patterns around which the case law in
this area revolves – the “Manpower” or employment agency cases, in which the
III. employee is almost universally held to be a “special employee” of the business
A.
employer that has hired him as a temporary helper, [6] and all other work situations in We exercise plenary review over a district court’s decision to grant summary judgment. Detz v. Greiner Indus., Inc., 346 F.3d 109, 115 (3d Cir. 2003). Under [6] For examples of “M anpower” Federal Rule of Civil Procedure 56(c), cases, see Kelly v. Geriatric & Med. summary judgment is proper where no Servs., Inc., 671 A.2d 631 (N.J. Super. Ct. genuine issue of material fact exists, and App. Div.), aff’d, 685 A.2d 943 (N.J. where, viewing the facts in the light most 1996) (finding that a nurse working for a favorable to the party against whom temporary nursing services provider was a summary judgment was entered, the special employee of the convalescent moving party is entitled to judgment as a center where she was placed based on the matter of law. Celotex Corp. v. Catrett, satisfaction of the five-factor Blessing 477 U.S. 317, 322-23 (1986). In test); Antheunisse v. Tiffany & Co., 551 considering a motion for summary A.2d 1006 (N.J. Super. Ct. App. Div. judgment, a district court may not make 1988) (finding that a temporary worker credibility determinations or engage in any placed at Tiffany’s to work during the weighing of the evidence; instead, the non- holiday season was a special employee of moving party’s evidence “is to be believed Tiffany’s due to the existence of an and all justifiable inferences are to be implied contract for hire, the nature of the drawn in his favor.” Anderson v. Liberty assigned tasks, and Tiffany’s right to Lobby, Inc., 477 U.S. 242, 255 (1986). control the details of her work); Chickachop v. Manpower, Inc., 201 A.2d
which an employee is actually working on months prior to his accident. Id. The a job or project of someone who is not court developed the five-factor test technically his employer. In this latter described above and made the following class of cases, the way in which the determinations: although a benefit of the Blessing factors are viewed to apply, given plaintiff’s work accrued to the defendant, the specific facts involved, will dictate the the work was being done in furtherance of result. As M arino’s situation clearly falls the detective agency’s contract with the within the latter category, it is instructive defendant; although the defendant had to review the key cases applying New incidental control over the plaintiff, the Jersey law to this type of fact pattern as the detective agency retained significant first step in our analysis. control over most aspects of his work; no
consensual relationship or contract existed We begin with Blessing itself. In between the plaintiff and the defendant; Blessing, the plaintiff was an employee of the plaintiff’s salary was paid by the a detective agency who was regularly detective agency; and the defendant had no transferred to new locations, as directed by power to hire or fire the plaintiff. Id. at his primary employer, to provide security 712, 716. Thus, the court concluded that services. 228 A.2d at 712. He was injured the plaintiff was not a special employee of while patrolling the defendant’s foundry, the defendant at the time of his injury, and where he had been working for a few his tort action was allowed to proceed. Id. at 718.
90 (N.J. Super. Ct. Law Div. 1964) Our reading of Blessing teaches us (finding that a temporary worker several important lessons. Besides performing industrial work at a company’s learning the specific elements of the test steel plant was a special employee of the
for finding a special employment borrowing company based on the relationship, we are instructed that “the satisfaction of the Larson test and factors criteria for the determination of an similar to those listed in Blessing); see also
employee-employer relationship are not Whitehead v. Safway Steel Prods., Inc., exclusive, but must be rationalized and 497 A.2d 803 (Md. 1985) (finding that a applied so that each case may be temporary worker placed at a company to
considered and determined upon its own perform menial industrial work was a particular facts.” Id. at 715 (internal special employee of that company based
quotation omitted). Additionally, the court on a five-factor test that resembles the test indicated in Blessing that “a showing of a set out in Blessing). We will not discuss deliberate and informed consent by the this class of cases at length here, as we are
employee” is required before an express or not dealing with a situation involving a implied contract for hire will be found, temporary placement agency and, thus, the satisfying the first factor of the test and analysis of the instant case will not be
weighing in favor of finding a special derived from the “Manpower” decisions. employment relationship that would bar a provided certain services – including both tort action. Id. at 716. workers and equipment – to be rented by
other organizations. Id. at 991, 994. The The teachings of Blessing were court discussed the five factors listed in echoed in subsequent decisions of the New Blessing and found that Consolidated Jersey Superior Court. In Santos, the retained control over the plaintiff’s work, plaintiff was the wife of an employee of that the rental agreement between the one company who was killed while companies explicitly stated that it was not working at a subsidiary company’s facility. a contract for hire, that the defendant could 541 A.2d at 709. The court applied the not hire or fire the plaintiff, that principles discussed in Blessing to find Consolidated continued to pay the that a special employment relationship plaintiff’s wages, and that the work existed, emphasizing that the subsidiary performed by the plaintiff was “entrusted had the right to control the employee under to him by the general employer a continuing service agreement that [Consolidated].” Id. at 993-94. Under provided for the regular borrowing of these facts, the Superior Court concluded employees by the subsidiary. Id. at 711- that there was no special employment 12. The Santos court explained that under relationship. Id. at 994. the Blessing test, “the actual exercise of control is not as determinative as the right The Murin court provided a helpful of control itself.” Id. at 711 (quoting explication as to the analysis to be Smith v. E.T.L. Enters., 382 A.2d 939, 942 followed with respect to each of the (N.J. Super. Ct. App. Div. 1978)). Also, Blessing factors. For instance, in although the court gave less weight to the describing the first factor – a contract for factor that focuses on who paid the hire – the court indicated that the employee’s wages, it found that the fee employee must consent to such a paid by the subsidiary to the primary contractual relationship because he “loses employer in Santos was essentially a certain rights along with those he gains reimbursement for the wages and costs when he enters a new employment associated with the borrowed worker’s relationship.” Id. at 993. Thus, a labor. Id. at 712. “showing of deliberate and informed
consent by the employee” is necessary A few years later, in Murin v. before a special employment relationship Frapaul Construction Co., 573 A.2d 989, will be found. Id. As to the second factor 991 (N.J. Super. Ct. App. Div. 1990), the – whose work is being performed – the plaintiff was injured while operating a court noted that “absent evidence to the cement mixer truck on a construction contrary, there is an inference that the project. Although he was performing em ployee remains in his gen eral work on a project run by the defendant, he employment so long as, by the service was employed by Consolidated Steel and rendered another, he is performing the Aluminum Fence, a company that business entrusted to him by the general between the two related trucking employer.” Id. companies existed, providing for the
exchange of employees between the two The New Jersey Superior Court had companies, and that the plaintiff had another occasion to engage in a special consented to an employment relationship employment analysis in Pacenti v. with the second company, the court Hoffman-La Roche, Inc., 584 A.2d 843 concluded that the Blessing test was (N.J. Super. Ct. App. Div. 1991). There, satisfied. Id. at 354. Regarding the fifth the plaintiff was injured while performing factor of the test, the court stated that “the work for a second employer pursuant to a right to control whether plaintiff would be written contract providing for his primary assigned to work for [the special employer to supply maintenance personnel employer] is the equivalent of the power to to the borrowing company. Id. at 844. discharge him.” Id. Due to the existence of a factual dispute, the court stopped short of reaching a In its only decision explicitly decision on the special employment confronting this issue, the New Jersey question. Id. at 847. But before Supreme Court briefly addressed the remanding, the court noted that several question of whether a special employment factors cut heavily in favor of finding a relationship existed in Volb. Although special employment relationship, including much of the court’s decision focused on the fact that the plaintiff had been under other issues, the court did engage in a short the control of the borrowing company and discussion of Blessing and its application doing its work for several years. Id. at by the Superior Court before finding that 845-46. an employee of one construction company
was the special employee of an affiliate The most recent guidance from the company for which he was performing New Jersey Superior Court on the five- construction work. 651 A.2d at 1003-04. factor Blessing analysis is provided in Significantly, looking beyond actual Gore v. Hepworth, 720 A.2d 350 (N.J. control exercised by the special employer, Super. Ct. App. Div. 1998). There, the the court focused on the special court found that an employee of one employer’s right to control the plaintiff’s trucking company, who was injured while work. Id. at 1005. Also, treating the case riding along with an employee of another as an easy one, where the facts obviously trucking company where the plaintiff had indicated that a special employment recently been employed as well, was a relationship existed, the court did not special employee of that second company mention or rely upon the final two at the time of the accident. Id. at 352. The Blessing factors – the payment of wages, court applied all five factors from and the power to hire or fire. But neither Blessing, noting that the right to control is did the court explicitly reject those factors the most important one. Id. at 353-54. or indicate that they are improper After determining that an oral agreement considerations in making a special officer of the fire department of the employment determination. [7]
requesting service shall assume full charge of the operations.” Id. On those facts, we
And finally, we recently confronted held that the plaintiff fire fighter was a a New Jersey special employment situation special employee of the Navy fire ourselves in Roma v. United States, 344 department when he was injured. Id. at F.3d 352, 354 (3d Cir. 2003), where the 363. plaintiff was a township firefighter who was injured while fighting a fire at a We analyzed three of the five United States Naval Air Engineering Blessing factors as the New Jersey Station. He was called to assist at the site Supreme Court did in Volb, but also of the fire pursuant to a written mutual aid mentioned the other two arguably less fire fighting assistance agreement between important factors in passing. Id. at 364. his fire department and the Navy fire We determined that the provision giving department associated with the station the special employer the right to control where the fire occurred. Id. at 355. The the details of the work involved in joint written agreement had been in place for undertakings pursuant to the mutual aid approximately twenty years and provided agreement satisfied the most important that each party would assist the other when factor in the special employment test. Id. requested, if the requested fire fighters and Regarding the contract for hire, we noted equipment were available, and that when that the plaintiff conceded that he had such assistance was called for, “the senior voluntarily “consented to the special
employer relationship” and “submitted to the direction of” the special employer. Id. [7] Following Volb, the New Jersey Finding that the work being done was Superior Court continues to discuss the essentially that of the special employer, we final two factors of the Blessing test. For noted that the relevant question was example, in Gore, which was decided three “whether the work being done by the years after Volb, the Superior Court
plaintiff was an integral part of the regular discussed all five of the factors that were business of the borrowing employer, or developed in Blessing. 720 A.2d at 353- whether there is a functional integration of 54. Additionally, we note that in Kelly,
the respective operations of the lending which was a “Manpower” case that was and borrowing employers.” Id. at 365 decided a year after Volb, the Superior
(internal quotations omitted). Both entities Court listed and discussed all five factors were engaged in firefighting at the same in its special employment analysis. 671 site, thus leading to the conclusion that A.2d at 633. The New Jersey Supreme
their forces and operations were integrated Court subsequently affirmed the Superior at the time. Id. Our conclusions regarding Court’s decision in Kelly “for the reasons each of these prongs found clear support in expressed in the opinion” of the Superior
the written agreement governing the Court. 685 A.2d at 943. employee-borrowing situation at issue in resemblance to a contract for hire. If Roma. anything, this agreement seems to dispel
the notion that Marino was actually
C.
contracted for by ICR to do this work. Consistent with this line of relevant Unlike every other fact pattern in which a decisions, the District Court and the parties “special employment” relationship has focus our attention on three key questions been found to exist, there was no ongoing under Blessing: 1) Was there a contract for contractual arrangement for the use by ICR hire?; 2) whose work was Marino doing?; of Marino’s services or those of KEC and 3) did ICR have the right to control electricians generally. See Roma, 344 Marino’s work? The District Court found, F.3d at 355 (describing an established and ICR now argues, that the prominent agreement governing situations in which factors of the Blessing test, expressed in one fire department would borrow those three questions, are satisfied here for employees from another fire department); the reasons we have already described. On Gore, 720 A.2d at 354 (describing an appeal, Marino urges that none of the three agreement by which employees of one factors are satisfied. Regarding the first, company would be temporarily hired by he asserts that his brief work on the the other company when work for either composite crew was not sufficient to company declined); Pacenti, 584 A.2d at indicate consent to an implied agreement – 844-46 (describing a contract providing for either on the part of Marino or ICR – that one company to supply maintenance they would enter into a temporary workers to another company, along with a employer-employee relationship. On the five year period during which an implied second factor, Marino contends that the contract for hire between the plaintiff and work being done was in furtherance of defendant company was likely formed); KEC’s contract with Marcal, or at the very Santos, 541 A.2d at 709-10 (describing an least was the work of both KEC and ICR. “ est a b l is h e d p r o c e d u r e ” w h e r e b y And as to the third factor, Marino argues employees of one company would that despite the nominal actual supervision regularly be assigned to work another of the work by Michael Ruane of ICR, company’s plant when their own company ICR had no right to control Marino, nor closed for the winter). To the contrary, the could it hire or fire him, affect his pay, or composite crew agreement at most dictate how and when he should do his job. establishes a joint undertaking. It does not
include specific provisions creating a We find Marino’s arguments to be procedure for one union to borrow or very persuasive. First, with respect to the temporarily hire workers associated with issue of the “contract for hire,” the only the other union for a specific purpose, as contract here was the “composite crew in Pacenti, nor does it form an agreement” – a decades old informal union understanding about such a relationship cooperation understanding that bears no between two parties that will be resorted to regularly in the future, as in Roma. being performed and conclude that a special employment relationship is Further, we find little support for established where the employee is doing the proposition that the “implied” work that is more accurately characterized agreement found to exist by the District as work of the special employer alone, as Court can satisfy the “contract for hire” in the “Manpower” cases. See element under Blessing. See Murin, 573 Antheunisse, 551 A.2d at 1008 (finding A.2d at 993 (emphasizing the importance that a temporary worker’s duties were of the consent requirement and asking “definitely part of [the temporary whether the employee and both employers employer’s] regular business,” rather than understood that the employee would the work of the temporary agency); see become employed by the special employer also Murin, 573 A.2d at 993 (stating that for a given purpose); Blessing, 228 A.2d at “absent evidence to the contrary, there is 716 (indicating that “a showing of a an inference that the employee remains in deliberate and informed consent by the his general employment so long as, by the employee” is required before an implied service rendered another, he is performing contract will be found); Chickachop, 201 the business entrusted to him by the A.2d at 95 (describing the typical general employer”). In the situations “Manpower” case where the employee where no special employee relationship knows he will be “hired out to special was found, such as Blessing, where employers” and he voluntarily accepts Blessing’s work for the defendant such employment). To find that such an remained within the realm of his regular implied contract exists here would seem to detective work, this was not the case. emasculate the contractual requirement that the New Jersey courts have actually The District Court reasoned that applied relatively strictly. The absence of because KEC subcontracted with ICR to an explicit contract here, along with the have ICR perform this work, it was ICR’s absence of any other indications that work that was being done. But we think Marino knowingly formed an implied the issue is a bit more complicated than contract for hire with ICR when he joined that. The work was essentially that of both the composite crew, cuts heavily against a KEC and ICR, in the sense that ICR was finding that Marino was a special responsible for doing it under its employee of ICR. subcontract with KEC, but KEC was
ultimately responsible for this work Next, as to the notion that Marino pursuant to its contract with Marcal. was doing ICR’s work, we are not Actually, the fact that electricians as well convinced that this element is as easily as riggers are routinely called upon to do satisfied as the District Court’s decision this type of hybrid work seems to detract indicates. Given the case law described from, rather than support, the existence of above, we understand that this factor a special employment relationship here. requires us to look at the work actually The very fact that the composite crew was Marino’s statements and the evidence formed indicates that the task involved related to Michael Ruane’s instructions as presented a situation that was not clearly the task was unfolding, we would have the work of either riggers, or of difficulty concluding that ICR had a right electricians, alone. In fact, it appears to us to control Marino’s work as a member of the crew. [8] For instance, if the KEC that the task was as much the work of electricians as it was of riggers. We think electricians were scheduled to take a that although M arino’s work on the coffee break before the crew was finished composite crew may have rendered a moving the switchgear, nothing in the service that benefitted ICR in its work on record indicates that the ICR workers or the project, it ultimately served a purpose supervisors would have had any right to that was within KEC’s responsibilities to prevent Marino and the other KEC Marcal under its general contract. We thus electrician on the crew from stopping their conclude that the work he performed work to take that break. In fact, there is no should not necessarily be deemed to be the indication in the record that ICR had the work of ICR, and might actually be right to control anything with respect to characterized as more the work of KEC – Marino’s work on the crew, only that its because of its ultimate responsibility for it employees took control over details that – than that of ICR. In any event, this were “incidental in nature and of no factor does not point toward the existence of a special employment relationship as ICR urges. [8] We emphasize that, with respect to the control analysis, this case is factually And finally, we view the issue of distinguishable from Roma, despite ICR’s the “right to control” to require more than urging that Roma dictates the outcome of an examination of who assumed control this appeal. As we noted above, Roma over the task of the composite crew. involved a written agreement providing for Rather than looking to actual control that
the borrowing of fire fighters from one was exercised by the putative special department by another. 344 F.3d at 355. employer, we have noted that the focus of Moreover, the same written agreement the case law is on the right to control the
explicitly indicated that, when a joint employee in his work. See, e.g., Roma, effort was required, the borrowing 344 F.3d at 365 (describing the “all-
department would have the right to assume important third prong” of the test as full control over the fire fighters from both “whether [the special employer] had the units. Id. Thus, the control prong of the right to control” the plaintiff); Santos, 541
test was easily resolved in Roma and A.2d at 711 (citing Mahoney and clearly cut in favor of finding a special emphasizing that the actual exercise of employment relationship. Id. at 365. control “is not as determinative as the right
Here, there is no such provision in the of control itself”). Looking beyond “composite crew agreement.” particular legal significance.” Id. at 716. from their facilities. See, e.g., Gore, 720 A.2d at 354 (finding that such power was Related to the “right to control” the “equivalent of the power to discharge,” element of the test, the final two Blessing where the other Blessing factors were factors, while perhaps not viewed as being satisfied as well); Kelly, 671 A.2d at 636 as important as the first three, can (same). The power to potentially ask KEC nonetheless be helpful in resolving any to have Marino removed from the doubt that may remain in close cases. See, composite crew is not, without satisfaction e.g., Murin, 573 A.2d at 994 (discussing of the other Blessing factors, sufficient to the final two factors in a case where the support a finding that ICR had a right to first three factors did not clearly support a control Marino or that a special finding that a special employment employment relationship existed in this relationship existed); Blessing, 228 A.2d at case. 713 (same). Here, both factors strongly point toward the absence of a special Considering all five factors employment relationship. Marino was together, as they relate to the facts before paid by KEC for the duration of his work us, we conclude that Marino was not a at the M arcal site. ICR made no special employee of ICR at the time of his contributions to his wages or benefits, nor injury. We believe this conclusion to be did it offer any payment to KEC in entirely consistent with the decisions of exchange for Marino’s work on the New Jersey courts applying the special composite crew. employment test. In most of those
decisions, the courts faced situations that Similarly, KEC retained the right to were characterized by a degree of structure hire or fire Marino throughout the project. and formality – whether in the form of a ICR had no right to select which temporary placement agency and its electricians were assigned to the composite practices, or a formal contractual crew, and it had no power to remove relationship governing the details of the Marino from the Marcal project. Although parties’ relationship – that is simply ICR asserts that it could have requested lacking here. W hile we recognize that that KEC replace Marino with another cases are not required to include a worker if his performance was deficient, Ma npow e r ag en cy o r a w ritten we do not think that to be equivalent to the employment contract in order to satisfy the power to hire or fire Marino under these Blessing test, we are reluctant in this case circumstances. We are not persuaded by to impose special employer status on what ICR’s reliance on statements made by the appears to reflect the opposite extreme – New Jersey courts in cases where the an informal, custom ary opera ting temporary employers of the plaintiffs procedure of union laborers, combining to retained some right to screen workers work together on a discrete aspect of a job, before they were placed and could also while retaining their own employer- unilaterally decide to remove workers employee relationships. accident, and was thus precluded from
pursuing a negligence action against ICR. We note that care must be taken as Accordingly, we will REVERSE the we examine any given set of facts to District Court’s order granting summary determine whether a plaintiff falls within judgment in favor of ICR and REMAND the WCA’s broad definition of “employee” the case to the District Court for further – in other words, whether a special proceedings consistent with this opinion. employment relationship exists – because the ramifications of that determination can be quite significant. See Murin, 573 A.2d at 993 (applying the Blessing factors strictly “because the employee loses certain rights,” including the right to sue his special employer, “when he enters a new employment relationship”). As we have already discussed, if such a relationship is found, a potential source of recovery for injury through a negligence action could be deemed waived by the plaintiff when he accepts workers’ compensation benefits from his primary employer. Therefore, although the New Jersey courts have indicated that the term “employee” should be defined liberally in keeping with the broad goals of the WCA, Santos, 541 A.2d at 712, we will not enlarge the concept of a special employer beyond those situations that fit within the parameters of the case law surveyed above. Here, we do not believe that the New Jersey courts would countenance converting a very temporary and seemingly routine combination of labor forces to accomplish a discrete task into a special employment situation.
IV.
In light of the foregoing discussion, we conclude that the District Court erred when it determined that Marino was a special employee of ICR at the time of the
