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Many police officers work outside assignments that are approved through their police department. What happens if an injury occurs to the officer in the approved outside assignment? What are the ramifications for workers’ compensation and civil liability purposes? This issue arose in Dutcher v. Pedro Pedeiro and Black Rock Enterprises, LLC., A-1088-16T3 (App. Div. October 25, 2017).
Black Rock Enterprises approached the Township of Woodbridge Police Department for permission to hire police officers for traffic control while its workers performed a road milling project in town. The Company specified how many police officers would be required for the job and paid the Township for their services. The Township assigned the police officers and then in turn paid them directly. Officer Dutcher, the plaintiff in this case, was approved by the Township to do work for Black Rock Enterprises. The company assigned him to a specific intersection of Woodbridge Center Drive and Plaza Drive.
On the day of the accident, Dutcher reported to the site, and was instructed by the company on his duties. He followed all the construction company’s policies. Dutcher reported to the company’s supervisor, which had control over his work. The company directed Dutcher in how to direct traffic, depending on the progress and status of the milling work. The Township had no authority over Dutcher’s duties at the work site. The company also had the power to discontinue Dutcher’s services if his work was unsatisfactory.
Dutcher was injured when a vehicle driven by Pedeiro, an employee of the construction company, struck him while performing his traffic control work. Dutcher received workers’ compensation benefits from the Central Jersey Joint Insurance Fund, of which Woodbridge Township was a member. Dutcher also attempted to sue the construction company for negligence. The Central Jersey Joint Insurance Fund took the position that Dutcher had two employers, and that Black Rock Enterprises was equally responsible for the workers’ compensation claim.
The trial judge ruled that Dutcher was a special employee of the construction company and therefore could not sue the construction company. The Appellate Division agreed stating that “a ‘special employment relationship’ where the ‘special employer’ is also responsible for workers’ compensation exists ‘when a general employer lends an employee to a special employer.’”
There are five factors to consider in establishing a special employment relationship. First, the Court noted that there must be consent for contracting: “Here, plaintiff signed up for the Extra Duty Services knowing the Township would hire him out to a second employer and would expect him to perform his duties for that employer.” Consent was therefore established.
Second, the Court said that the work being done must be essentially that of the second employer. That was easy to show because the construction company specified how many officers it needed and the date, time and location of the work. The company specified the requirements of the job, and traffic safety was essential for the safety of the construction workers.
The most significant factor is the third, namely the right of control. The Court said it was clear that the construction company controlled Dutcher’s activities, as it could direct his work and get rid of him if it wanted to do so. There was a foreman on the site in control of the operation.
The fourth factor involved payment by the construction company to Dutcher. The Court said that it really amounted to the same thing when the company paid the Township, which in turn paid Dutcher.
The fifth factor pertained to the right of the company to hire or discharge the special employee. Even though the company did not hire Dutcher personally (the Township assigned him), the company clearly had a right to dispense with Dutcher’s services if it wanted to do so.
For all these reasons, the Appellate Division held that Dutcher could not sue the construction company, as Black Rock Enterprises was his special employer. New Jersey has a powerful exclusive remedy provision which states that an employee cannot sue his or her own employer for personal injuries in a civil action except in truly rare cases of intentional harm.
This case follows prior case law on this issue. There are many joint employer and special employee situations in New Jersey. Where the parties to the joint employment or special employment relationship have not clearly established liability for workers’ compensation, a Judge of Compensation has the power to assess responsibility for workers’ compensation equally between the employers. The issue in this case focused more heavily on the corollary principle, which is that the injured worker cannot sue either company in a joint or special employee situation.
It makes good sense for employers like police departments, which routinely assign officers to outside companies for approved work, to get written agreements signed in advance regarding the responsibility of the special employer to pay for workers’ compensation injuries. Most employers who request police officers or special employees do not realize that they are responsible for workers’ compensation injuries in whole or in part. That leads to unnecessary and expensive litigation. The easy solution is to address this issue right up front.
Thanks to Ron Siegel, Esq. for bringing this appellate division decision to our attention.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at email@example.com.