Lead Opinion
In this appeal we consider whether a person who is employed by a temporary services agency is also an employee of the company to which the worker is provisionally assigned. Preliminarily, however, we must decide whether the existence of an employment relationship was properly treated by the trial court as a legal, rather than factual, issue. We conclude that the question of relation was a matter of law for the trial court to decide, and affirm that court’s determination that the worker was an employee of the utilizing company.
I
The facts of this case are undisputed and may be summarized as follows:
Bay Services, Inc. (Bay), is a temporary help agency in the business of supplying unskilled labor to various industrial customers. When a client requests a Bay worker, Bay selects an employee from among its available labor pool and assigns the worker to the job. The client is then free to utilize and direct the employee as the particular situation demands.
The client records the number of hours worked by the employee and is billed accordingly. Bay pays the worker a designated wage and maintains workmen’s compensation insurance to cover any unforeseen mishaps. Bay also pays unemployment insurance assessments for its employees.
On February 18, 1981, Safway Steel Products, Inc. (Safway), contacted Bay and requested two temporary help workers. Bay selected Whitehead and another worker and assigned them to the job. The men reported to Safway and were directed by it to perform several menial tasks. The first day passed without incident.
The men returned to Safway the next day and resumed their duties. Whitehead was given the task of loading steel scaffolding onto a trailer. While Whitehead was thus engaged, a bundle of scaffolding fell on him and caused serious injury.
Whitehead filed for, and received, workmen’s compensation benefits through Bay for his injury. He also instituted a negligence suit against Safway for the same occurrence. A jury trial was elected and trial commenced.
At the close of plaintiff’s case, Safway moved for a directed verdict, claiming that Whitehead was its employee and that his exclusive remedy was under the workmen’s compensation laws. The court (Bothe, J.) denied the motion and the case was submitted to the jury without the defense presenting evidence. After deliberation, the jury determined that Whitehead was not an employee of Safway and that the latter was negligent in the operation of its plant. The panel awarded damages to Whitehead.
Safway’s subsequent motion for judgment n.o.v. was granted by the trial court. According to Judge Bothe, the uncontradicted evidence demonstrated that Safway controlled Whitehead’s work. This meant that Whitehead was an employee of Safway and that his only remedy for the occupational injury was through the workmen’s compensation laws. Whitehead’s negligence action was thereby dismissed.
Whitehead appealed to the Court of Special Appeals. Prior to consideration by that court, we granted certiorari
II
We must first consider whether the existence of an employer/employee relationship between Safway and Whitehead was properly treated as a legal matter, capable of resolution by judgment n.o.v. Armed with authority, the parties present two competing views on this question.
Safway contends, as it successfully did below, that when the evidence in a labor case is undisputed, the question of relation between the parties becomes one of law for the court to decide. In Safway’s opinion, it is only where (1) the evidence is disputed, and (2) different inferences can be drawn from the evidence, that the existence of an employer/employee relationship should be determined by the fact-finder. Safway argues that, in the instant case, all of the facts were presented by Whitehead, and the defense rested without calling a witness; thus all remaining issues concerning the employment relationship were legal matters properly resolved by judgment n.o.v. As authority for this proposition, Safway cites Tavel v. Bechtel Corporation,
“[wjhere the terms and manner of employment are disputed and different inferences may be drawn therefrom, the issue is a mixed question of law and fact, to be determined by the trier of the facts, under proper instructions, but where the essential terms and manner of employment are undisputed, the question is one of law for the court” (emphasis supplied)
Whitehead admits that the evidence is uncontested. Contrary to the approach espoused by Safway, however, Whitehead asserts that a jury must determine the question of relation whenever (1) the evidence is disputed, or (2) differing inferences can be drawn from the facts adduced at trial. Taking this argument to its logical conclusion, a factfinder would decide the employment relation any time the parties
“on appeal from the Workmen’s Compensation Commission ... where the facts or inferences therefrom, or both, are in dispute, such questions [e.g., relation of parties] are to be determined by the jury.”
A.
In order to resolve this apparent conflict between the two cases cited by the parties, and ascertain the precise role of the judge and jury in deciding employment issues, we examine initially our past decisions in this area.
In our first consideration of the proper role of judge and jury in employment cases, we admitted that the greatest difficulty in these cases is in determining, upon the facts, who is to be regarded as the master of a particular worker. Deford v. State, Use of Keyser,
Several decades later, in Sacker v. Waddell,
Later cases of the Court further clarified the occasions when a jury, or a court, should decide employment issues. A court, we said, should not determine whether an incident arose out of and in the course of employment if there is a need to decide between opposing witnesses. Jewel Tea Co. v. Weber,
Nevertheless, we continued to authorize courts to decide ordinarily factual matters as legal issues where the evidence on the point was undisputed. This principle was first utilized in Harrison v. Central Con. Co.,
*74 “[t]he question as to whether the injury occurred out of or in the course of employment is ordinarily, like negligence or want of probable cause, a mixed question of law and fact; but when the facts have been ascertained and agreed upon by the parties, or are undisputed and there is no dispute as to the inferences to be drawn from the facts, the question becomes one of law and may be decided by the Court.” (emphasis supplied)
The most recent pronouncement which defines legal and factual issues is found in Mackall v. Zayre Corp.,
*76 “[i]f there is evidence to support an inference that more than one individual or company controls or directs a person in the performance of a given function, the question whether an employer-employee relationship exists is a question of fact to be determined by a jury.”
Id. at 230,
B.
With the historical review behind us, we now turn to the proper rule for distinguishing questions of law from matters of fact in the employment field. First, the decisions of this Court make clear that whenever evidence in a labor case is disputed, and differing inferences from the evidence are possible, a jury must determine the underlying employment issues. Both of the cases which the parties cite for our perusal support this point. See Tavel, supra,
Second, where the evidence on an issue is uncontradicted, ordinarily a court may decide the issue as one of law. Tavel, supra, and cases cited therein; Bogatsky, supra,
In the present case, Whitehead concedes that all control of specific tasks while he was at Safway belonged entirely to Safway. This significant fact rendered the employment issue proper for judgment n.o.v., and renders his unsupported claim of “conflicting inferences” a nullity.
The decisions reached in the L. & S. Construction line of cases proves this last point. Under Whitehead’s reading of the case, a factfinder would always decide employment issues since, as between the parties, the inferences possible in a case are invariably contested (otherwise, trial would not be necessary to resolve the dispute.) Nevertheless, when this Court has employed the L. & S. Construction test, we have not hesitated to rule, as a matter of law, upon the employment issue. See, e.g., Globe Indemnity, supra (employer-employee relationship); Greer Lines Co., supra (employer-employee relationship).
It follows that Judge Bothe properly treated the question of relation as a matter of law.
Ill
A.
It remains to be determined whether Judge Bothe correctly decided that as a legal matter, Whitehead was an employee of Safway. This Court has traditionally considered five criteria in determining whether or not an employer/employee relationship exists between two parties. These criteria, developed from the common law standard for determining the master/servant relationship, see Sun Cab, supra,
Of the five factors, the factor of control stands out as the most important. We have said, for example, that 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” is the “decisive,” Mackall, supra,
Moreover, the amount Safway was billed by Bay for its use of the temporary worker was greater than what Bay paid Whitehead. This extra cost doubtlessly helped cover, besides Bay’s profit margin, such expenses as Bay’s payment of Whitehead’s unemployment and workmen’s compensation insurance. In other words, Safway actually contributed to the insurance protection of one of its employees.
Of course, the fact that Whitehead was admittedly the employee of Bay at the precise time he worked for Safway does not alter this conclusion. A worker may simultaneously be the employee of two employers. Mackall, supra,
While this Court has not previously determined that temporary services workers are employees of the company to which they are sent, other jurisdictions have considered the issue. They are generally in accord with our holding that temporaries such as Whitehead, who work in employment circumstances similar to the one here present, are as a matter of law, employees of the customer. See, e.g., Simmons v. Atlas Vac Machine Co.,
We ruled that on this evidence, we could not agree with L. & S. that, as a matter of law, the worker was an employee of Weygant. Id. at 60,
Whitehead utilizes this language to argue that Safway’s simple control over the details of his work does not establish that, as a matter of law, he was “controlled” by Safway so as to make him the employee of Safway. This reasoning is flawed for several reasons.
First, control over the details of work which was insufficient to prove an employer-employee relationship in L. & S. Construction is far different than the amount of control exercised by Safway. Weygant was only concerned with moving dirt and packing it to form a road. Weygant could only point to what was to be done; it had no right to order the employee to change his manner of operation or remove the tractor from the job. Id. at 60-61,
In the instant case, Safway had the right to instruct Whitehead on the tasks to be performed, had the power to
Second, as we recognized in Keitz v. National Paving Co., supra, in cases where a servant is lent to another with the personal property of the original master, there is a presumption that the employee remains the servant of his general employer.
Additionally, as we acknowledged in L. & S. Construction, 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. Id. at 56,
Finally, as we recognized in Mackall, supra, the correct test for determining questions of law is whether there is conflicting inferences, from the evidence, on the issue of control “in the performance of a given function.”
B.
An analysis that is perhaps more helpful than the traditional common law test in identifying the relationship that existed between Safway and Whitehead is provided by the “lent employee” or “dual employment” doctrine. See Thompson, supra,
“When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if
(a) the employee has made a contract of hire, express or implied, with the special employer;
(b) the work being done is essentially that of the special employer; and
(c) the special employer has the right to control the details of the work.
When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen’s compensation.”
William J. Burns Int’l v. Ferris,
Applying the lent employee test to the facts of this case, we again conclude that Whitehead was an employee of Safway. Part (a) of the test, whether an express or implied contract of hire existed between the parties, is satisfied if the employee consents to the special employment relation
There can be little doubt in the instant case that Whitehead consented to work for Safway. The contract between Whitehead and Bay specifically informed the worker that he would be assigned to client locations. Before accepting assignment, Whitehead was apprised of the customer’s name and address and the nature of the work. Whitehead could decline assignment, if he chose, without fear of reprisal. Whitehead voluntarily reported, on two separate occasions, to the Safway plant, and submitted to the special employer’s direction and control. All of these factors satisfy element (a). See Danek, supra, 312 Minn, at 308-09,
Elements (b) and (c) are satisfied and need not be discussed at any length. Element (b) is met because the tasks performed by Whitehead at Safway were exclusively that of the special employer. Element (c), control over the details of work, was conceded from the outset by Whitehead.
Since all of the conditions of the test are satisfied, the determination of the trial court has again proven correct.
IV
Whitehead lastly directs us to the interrogatories sent to Safway which ordered the company to furnish the names of all employees. In its answers, Safway did not include Whitehead. Whitehead maintains that this oversight dem
The parties’ subjective belief as to whether an employment relationship exists is not dispositive of the legal question of whether one is the employer of another, “except as such belief indicates an assumption of control by the one and submission to control by the other.” Sun Cab, supra,
For these reasons we conclude that the judgment of the lower court should be
AFFIRMED
COSTS TO BE PAID BY APPELLANT.
Notes
. Larson identifies several cases where the customer of a labor broker was held not liable for workmen’s compensation benefits. See Id. at notes 65.1, 66.1. These cases did not involve the issue sub curia (whether a worker is an employee of the customer), and are hence easily distinguishable. For example, in Smith v. Kelly Labor Services,
In Williams v. Atlantic & Gulf Stevedores, Inc.,
The court in Levinson v. Payson, 73 Mich.App. 655,
Similarly, in White v. Extra Labor Power of America,
. The Thompson Court, despite its reliance on 1A Larson, Workmen’s Compensation, inadvertently described the test for lent employees as “the consent of the employee, which may be expressed or implied; the right to control and direct the worker; and the responsibility for the payment of wages, which must be considered but is not necessarily determinative.” (emphasis supplied) Id. at 395,
Dissenting Opinion
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)
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
“[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,
(2)
As the majority notes, the criteria usually examined to determine whether an employer-employee relationship exists, listed in Mackall v. Zayre Corp.,
“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.”
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.,
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,
“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,
“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*90 as 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.”
A case not discussed by the majority, Charles Freeland v. Couplin, supra,
“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
The majority also cites L. & S. Co., supra,
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,*92 will 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,
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,
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.
. 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,
. 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