Temp Employee transports other employees to work site

FACTS

Claimant was employed by a temp service. He worked there every week day for months. He was one of the few temporary workers who had a car. He would frequently transport co-workers. Claimant has recently provided the daily pay sheet received from the employer for hours worked every day.  (copies attached) Please note that on 4/22/13 pay sheet in addition to his hourly pay he was paid an extra $7.00 for transporting a coworker.  On 5/10/13 he was paid an extra $15.00 for transporting a coworker.  On 5/20/13 the day before the accident he was paid an extra $30.00 for transporting a coworker.  The claimant testified on shorter trips from the home base to the work place for the day, employer would not pay the claimant for transporting a coworker, however on the longer trips the employer would actually pay claimant for transporting co-workers. On the day of the accident after receiving their assignment for the day claimant was transporting a coworker from the home site to the job site when they were involved in an accident.

ARGUMENT

The Commission’s decision cited the case of Lee vs. ESI Temps, 114 Md. App., page 1, (1997) as a reason for denial of this claim. Lee vs. ESI Temps discusses two exceptions to the going and coming rule; one is the free transportation rule and the other one is the employer conveyance exception.  The Lee vs., ESI Temps cites Harrison vs. Central Construction Company, 135 Md. 170 for the proposition when there is an agreement that an employer furnish free transportation to and from his work …if an injury occurs during the course of the transportation it is held to arising and out of the course of the employment.  Lee vs. ESI Temps then cites the Cardilo case which held, when the employer supplies their own vehicle, hires an independent contractor to use a vehicle or makes arrangements with a common carrier or reimburse employees for the use of their own vehicle or reimburses employees for the cost of transportation by any means they desire they are covered by Workers Compensation.  Finally Lee vs. ESI Temps refers to the case of Ryan vs. Kasaskeris where a domestic servant was provided round trip bus fare and she was injured after getting off the bus and walking short distance from the bus stop to her place of employment.  The Ryan case held where there is an underlying obligation to provide transportation by the employer, than workers’ compensation coverage exists because the employer is responsible for the claimant’s transportation.

The underlying principles outlined in the three cases mentioned in Lee vs. ESI Temps are, when there is an agreement that an employer furnish free transportation, injury occurs during the course of the transportation and the employer supplies their own vehicle, hires an independent contractor to use a vehicle or makes arrangements with a common carrier or reimburse employees for the use of their own vehicle or reimburses employees for the cost of transportation by any means they desire they are covered by workers compensation.

The second theory cited under the Lee vs. ESI Temp case is the employer conveyance exception.  The cardinal case cited is Watson vs. Graham.  Watson states that if a trip to and from work is made in a truck, bus, van, car or other vehicle under the control of the employer an injury during that trip is in the course of the employment. The reason for the rule depends on the extension of risk under the employer’s control.  The key here is control of the risk in an employer operated vehicle. Employer remains liable for the journey even if he charges the employee an amount for the trips sufficient to cover the cost or if he does it for free.  . . control of the conditions of transportation remains the grounds of liability.  While transportation provided by an employer in isolated cases only or infrequent basis may not be deemed to be an incident of employment, frequent and regular practice of providing transportation must be viewed differently.  Such a course of conduct indicates that the employer’s implicitly assumes the responsible or transporting his employees to work.  The employees may come to rely on the employer to continue to provide transportation and the employer may likewise encourage the practice to ensure the employees will arrive to the job on time.  At some point the practice may be so common and so associated with the employment that it must be seen as incidental to it.  An employer who assumes responsibility to transport his employees must likewise bear the responsibility for the risk encountered in connection with the transportation.  Watson cites the case of Bristo vs. Cross 210 VA 718 which held while the employees were not on the payroll during the time consumed between the drive from the home to the company office, they were never less in a vehicle owned, controlled or operated by the employer and following a route of their choosing and therefore workers compensation coverage applies.  In summary, Watson stands for the proposition that the employer conveyance exceptions allows for the compensation of employees who are injured while riding in a conveyance that is under the control of the employer when such transportation is incidental to the employment as a result of the express or implied agreement or by custom or continued practice of the parties, without regard to whether the transportation is provided for free or paid for by the employee or whether alternate forms of transportation are available.

The claimant Louis Jones fits within the spirit of the employer conveyance exception and the free transportation exception outlined above. Louis Jones who was one of the few employees’ who actually owned a vehicle, was promised regular employment because of the fact that he owned a vehicle.  Mr. Jones testified that he would arrive at the employer’s home base early in the morning at which time he would receive a work assignment and in addition he would typically be asked to transport other employees to the work site. The claimant testified that because he had a car the employer made it clear to him that he was more likely to get work each day then people who arrived with no car.  The basis for this preference is a) the employer knew the employee with a car would be able to get to the jobsite from the home base and b) employee with a car would also be able to transport other employees from the home base to the actual job site.  While there is no specific contract agreeing to provide transportation for these employees there had become a continued practice of the employer that Louis Jones would provide the transportation and take several employees with him. A custom developed where Claimant was asked by the supervisor to provide transportation for fellow employees and was actually paid for trips that were longer than a certain distance. Claimant has recently provided the daily pay sheet received from the employer for hours worked every day.  Please note that on 4/22/13 pay sheet in addition to his hourly pay he was paid an extra $7.00 for transporting a coworker.  On 5/10/13 he was paid an extra $15.00 for transporting a coworker.  On 5/20/13 the day before the accident he was paid an extra $30.00 for transporting a coworker. For shorter distances he was not paid but he was rewarded by getting continued regular employment.  The records indicate that he was reimbursed on several occasions including the day before the accident. The employer benefited by this particular arrangement because they would be able to employ more employees and receive payment for the work of those employees because Louis Jones was able to transport them to the scene. In fact if Claimant could not provide transportation the employer may not have been able to send out some or all of the other employees because they may not have had a reliable  way to get to the work place since most of these people work day by day and don’t have cars and have no way of getting anywhere other than by either public transportation or by other employees transporting them there.  If all employees had to rely on public transportation it could potentially take them so long to get to the work site that the work day could in fact be over or there may not be public transportation available to go on a direct route to the employer’s premises.  The employer greatly benefited by having employees who are willing to transport other co-employees to the work premises. If the employees who are being transported by Mr. Jones could argue that free transportation or employer provided conveyance exception applies, the surely the person that is providing the transportation should be able to make the same argument.

The claimant would next argue that the facts of his case fit within the normal definition of accidental injury. The Workers’ Compensation Act defines an accidental person injury as 1) an accidental injury that arises out of and in the course of employment; 2) an injury caused by the willful or negligent act of a third person directly against a covered employee in the course of employment of a covered employee . . . In the course of employment is defined as follows, an injury in the course of employment that occurs during the period of employment at a place where the employer may reasonably in performance of his or her duties or while fulfilling those duties are engaged in something incident thereto not.  Montgomery County vs. Wade 345 Md 1, 11, 690 A.2nd 990, 995 (1997) The course of employment refers to whether the employee is in the act of furthering the employers goals when the injury occurs.  The question of when an employee is in the course of employment will take us on a journey through a vast range of employment situations which have no less variety than that which is observable in everyday life.  Maryland Workers’ Compensation by Clifford Sobin, section 6.1, page 155.  In our particular case this injury occurred in the course of Claimants’ employment and was the result of the negligence of another driver and therefore the second definition of accidental personal injury applies. All Claimant must prove was that in the course of employment  Louis Jones was driving when the accident took place.  In this particular case Mr. Jones was transporting another co-employee to a work site after having reported to the temporary service in the morning getting his work assignment, told where to go and then immediately leaving as directed by the employer to go to the work site with another employee thereby benefiting Mr. Jones, as well as the other employee, as well as the employer.  The case of Montgomery County vs. Smith 144 Md. App.  548, 799 A.2nd 406 (2002) while finding that the accident either arose out of or in the course of employment, provides a good summary of the law on the definition of (in the course of employment).             An injury arises (in the course of employment) when it occurs: 1) within the period of employment, 2) at a place where the employer reasonably may be in the performance of his duties, 3) while he is fulfilling those duties or engaging or doing something incidental thereto Kanoch, 282 Md at page 554 pertinent inquires includes: when did the period of employment begin?, when did it end?, when was its continuity broken?, how far did the employee, during the period of employment, place himself outside the employment? Montgomery County vs. Wade 345 Md. 1, 11, 698. 2nd 990 (1990) (thus) in the course of employment (refers to the place, time and circumstances under which the accident resulting in the injury or death occurs).  It seems clear under the premises rule that if claimant had been injured while at the home base’s premises waiting for his job assignment, the claim would be compensable based upon the premises rule. This situation would be an analogous to where an employee comes in to pick up his paycheck and is actually not on the time clock but is injured while on the premises.  If the court agrees the work day starts when he reports to the home base for his pay check even if he has not be assigned work for the day, then it would seem to follow that the work day would likewise start when he reports to the home base for work. Once the work day starts, it would make no sense that the work day would then be interrupted during the period Claimant is going from the home base to the actual work place , especially under the circumstances in this case where the claimant has testified that the employer expects him to transport co-employees to the work site and in fact he was transporting a co-employee to the work site at the time of this particular accident.  This particular employer being an employment agency makes additional money for every employee that is able to arrive at the contracted for work site, the more worker’s they can provide the more money the employer is going to make.  If Mr. Jones provides transportation to the co-worker than the employer is going to receive more money than if the co-worker was not able to make it to the job site because he did not have transportation.  Therefore this particular employer benefits from the transportation that is provided by Louis Jones in that they will be able to bill the company that has hired the temporary agency more money because they have been able to provide an additional employee. Mr. Jones is providing the employer a service whether he is paid for it or not.  While the employer may pay for some trips and not pay for shorter trips the employer’s decision on reimbursement should not carry the day in this particular case.  The deciding factor should be whether the employer benefits from the transportation provided by employee. The employer’s decision not to pay Mr. Jones for the time between when the initial work assignment is given out and the arrival at the work site may be a business decision on their part. It may be voluntary on the part of the claimant to provide transportation to other co-employees. Those facts alone don’t mean that the employee shouldn’t be paid for this time or that he is not actually working for the employer at the time he is transporting co-employees even if not paid.  The employer at this point has control over the employee in that he has given him a work assignment,  he has told him where to go, he has told him how to get there, the employer is aware of how the employee is getting there and the employer tells him what time he needs to arrive, who he is supposed to work for, who the supervisor is that he is going to taking directions from and how long he is going to be working and he is to report back to the agency home base at the end of the day.  The employer is asserting control over Claimant from the minute he is given the work assignment in the morning until he returns to the plant at the end of the day. Based upon the above facts, Claimant is an employee under the employer’s control starting at that time of the trip between the home base and the first job of the day. While it can be argued that Claimant should get paid during the period of transportation, apparently he has agreed because he was told so by the Employer that he would not be paid. However the fact that the Employer refuses to pay him doesn’t therefore mean he is not working at that time or that he should not have Workers compensation coverage at that time.  The law is replete with examples of employers trying to skirt the law and avoid workers compensation coverage, but to no avail. Employers have been known to tell employees they are independent contractors when they are in fact employees.  What the employer does as part of his normal practice while interesting doesn’t necessarily effect the decision of the Commission as to whether a person is an independent contractor or employee or whether the person should have been paid even if they weren’t paid.  If the employer decides to pay someone less than minimum wage that doesn’t mean that he is legally allowed to do so. It just means as long as the employee accepts the illegal or unethical behavior and he doesn’t report it to any government agency then the practice will continue. However as in this particular case, once the practice is brought to the attention of the Commission, the commission than has the legal obligation to set the parties straight.

Additional case law which provide reasoning for compensability in our case include cases involving company picnics and parties, when the degree of employer involvement descends to mere sponsorship or encouragement. There are several Maryland cases including Sica 245 Md 606, 227 A.2nd 33 where an employee was seriously injured when he dove into shallow water at the employer’s annual picnic.  The picnic as well as the Christmas party was fringe benefits to the employment.  The picnic organized by the committee or employees and authorized by the employer’s mangers.  The cost of the picnic was paid for by the employer and the employees were urged to attend although attendance was not compulsory.  On the day of the picnic it was thirty miles from where the employee usually worked. The Court of Appeals held that the employer derives substantial direct benefit from the picnic activity via the intangible value over improving employee health and moral, to all kinds of recreational and social life thus Sica was entitled to compensation for his injuries.  Sica refers to five factors that are laid out in the Moore case including 1) the customary nature of the activity, 2) the employers encouragement or subsidization of the activity, 3) the extent to which the employer manager directed the recreational enterprise, 4) the presence of substantial pressure or actual compulsion of the employee to attend and participate, 5) that in fact the employer expects or receives a benefit from the employees participation in the activity, whether by way of improved employer/employee relationships through greater efficiency and the performance of employee duties.  In Claimants’ case using these five factors alone Louis Jones who was one of the few employees’ who actually had a vehicle, was promised regular employment because of the fact that he had a vehicle.  Mr. Jones testified that he would arrive at the employer’s home base early in the morning at which time he would receive a work assignment and in addition he would typically be asked to transport other employees to the work site. The claimant testified that because he had a car the employer made it clear to him that he was more likely to get work each day then people who showed up with no car.  The basis for this preference is a) the employer knew the employee with a car would be able to get to the jobsite from the home base and b) employee with a car would also be able to transport other employees from the home base to the actual job site.  While there is no specific contract agreeing to provide transportation for these employees there had become a continued practice of the parties that Louis Jones would provide the transportation and take several employees with him. A custom developed where he was asked by the supervisor to provide transportation for fellow employees and was actually paid for trips that were longer than a certain distance. For shorter distances he was not paid but he was rewarded by getting continued regular employment.  The records indicate that he was reimbursed on several occasions including the day before the accident. The employer benefited by this particular arrangement because they would be able to employ more employees and receive payment for the work of those employees because Louis Jones was able to transport them to the scene. In fact if he wasn’t the one providing transportation the employer would not have been able to send out any of the other employees out because they would have had no way to get to the work place since most of these people work day by day and don’t have cars and have no way of getting anywhere other than by either public transportation or by other employees transporting them there.  If all employees had to rely on public transportation it could potentially take them so long to get to the work site that the work day could in fact be over or there may not be public transportation available to go on a direct route to the employer’s premises.  The employer greatly benefited by having employees who are willing to transport other co-employees to the work premises. Based upon the above facts, there is ample evidence to support all five of the factors laid out in the Sica case.

 

If you believe the incident happened before the Claimant was on duty, Clifford Sobin in his workers’ compensation book under section 6.4 mentions that there is a final category of off duty injuries which can be compensable when the employee is not being paid.  If the employee’s activities: 1) further the interest of the employer; and 2) are known to the employer, then there is a high likelihood that injuries sustained while engaged in those activities will be considered to arise out of and in the course of the employment.  Mr. Sobin then gives several examples, 1) when a police officer is driving a marked cruiser off duty and is injured; it is compensable because the employer derives a benefit through enhanced public safety, etc. from the operation of a marked vehicle while off duty.  Montgomery County vs. Wade, 345 Md. 1, 698.2nd, 990 (1997) Secondly when an employer permits an employee to work off duty after hours and use company equipment for personal benefit and is injured or dies,this is compensable because the employer derives a benefit due to the enhanced morale of the employee.  Austin vs., Thrifty Diversified, Inc., 76 Md. App. 150, 543 A.2nd 889 (1988). Thirdly, when an employee returns to the site of employment to check a schedule, pick up wages, or pick up personal effects after termination and is injured on the employer’s premises, it is an incident of employment and is compensable.  Montgomery County vs. Smith, 144 Md. App. 548, 799 A.2nd 406 (2002) Claimant’s case would be similar to these cases in that he was providing transportation for himself as well as another co-employee in order to further the interest of the employer which is to send temporary workers to a work site and to make money off of those workers with the understanding that the more workers that arrive at the work site the more the employer will make.  In addition the employer is aware of the fact that Mr. Jones is providing the transportation and in fact was encouraging him.  There were several times when the employer actually reimbursed Mr. Jones for transportation and other periods where he wasn’t reimbursed where the trip was not as long however it was certainly encouraged as per the testimony of Mr. Jones.

Traveling on behalf of an employer has almost always been considered compensable.  Based upon the holding in Mulrady vs. University Research Corp. 360 Md 551, 756 A.2nd 575 (2000) we are now instructed to use the positional risk test which is nothing more than a but for standard.  But for the employment and the required travel as a result, the employee would not have been in the location where the injury occurred thus under this Mulrady standard an employee who was traveling and was injured after slipping in hotel bathroom may receive benefits as can an employee’s on a business trip, chokes on food and dies see Klein v. Terra Chemicals Intern; Inc. 14 Md. App. 172, 286 A.2nd 568 (1972). In Coats and Clark’s Sales Corp. vs. Stewart 39 Md. App. 10, 383 A.2nd 67 (1978) the Court of Special Appeals considered the following set of facts as to whether an employee’s injuries sustained on a trip to the grocery store to purchase food for a babysitter arose out of and in the course of employment.  The babysitter was needed so Stewart and his wife could attend a dinner party to honor two employees with whom Stewart worked.  Stewart was injured while driving his automobile to the grocery store to purchase food for the babysitter so that he could attend the event.  The Court found this was compensable and stated “the task of obtaining food for a babysitter is a reasonable and necessary incident to obtaining a babysitter’s services.  Because the task would not have been undertaking except for the obligation of employment, it is the task of transporting the babysitter is an integral component of the employee’s attendance at the work related social event. Accordingly we hold that the employee’s self contained trip to obtain food for the babysitter need to enable him to attend the work related social event is a special errant or mission.  Under the facts in our case Louis Jones was transporting a co-employee to a place of work.  He would not have been transporting the employee to the place of work unless the employer had a job for both Mr. Jones as well as the co-employee to perform.  If traveling for personal reasons during a business trip would be compensable then it would naturally follow that travel from a base of employment to an actual work site whether paid or not should be compensable.  If , when an employee reports for work in the morning, punches the time clock and then leaves the premises in their personal car in order to go to a different work site is covered, then as in our case, when Claimant reported to home base (office), the employer assigned Claimant to his place of employment for the day, employer told Claimant where he has to go, told Claimant the time Claimant had to report there, asked and encouraged Claimant  by preferences or direct payments to transport co-employees, told Claimant who he has to take orders from when he arrived at the work site and tells Claimant that he has to return back to the home base when the day is over in order to get paid, then the employer  seems to be exercising dominion and  control over that employee and therefore this should also be a compensable claim whether he punches a time clock or not. See Clifford sobin  Maryland workers compensation section 6.3 when an employee is required, as a condition of employment, to use their own vehicle for the benefit of the employer, the injuries incurred while commuting may be compensable. Alitalia Linee Aeree Italiene v. Tornillo 91 Md app 191, 603 A2D 1335 (1992),affirmed 329 MD 40 (1993), 617 A2D 572, see Heaps v. Cobb 185 Md 372, 45A2D 73 (1945)

The Claimant offers as his last theory of compensability, the Special Errand exception.  This exception to the going and coming rule applies when the employee makes a special trip on behalf of the employer outside the normal business hours.  The trip must be one that is important or urgent and represents substantial conduct by the employee that is clearly beyond what is normally expected during the regular business day.  Fairchild’s Space Company vs. Baroffio, 77 Md. App. 494, 551, 8.2nd 135 (1989) The special errand must be one that is on behalf of the employer.  If the agreement between the employer and employee, either expressly or impliedly compensated the employee for the errand, then it falls within the rule.  Reisinger-Siehler Company vs. Perry, 165 Md. 191, 167 A. 51 (1933) however even if the employee is not expressly compensated for the special errand, they still may come under the rule based on the nature of the special errand.  A father’s trip to the grocery store to obtain food for a babysitter before a company dinner function is considered a special errand.  Coats and Clark’s Sales Corp. vs. Stewart, Wind. App. 10, 383 A.2nd 67 (1978).   In Thistle Mills vs. Spence 137 Md 117, 11 A.769 (1920) an employee was charged with the responsibility of driving a musician home on one specified night a week and was involved in a fatal accident during the journey.  This case stands for the proposition that if any employee acts without express or implied direction in furtherance of the employer’s interest and within the bounds of their responsibility those facts may give rise to considering the act a special errant. In our case the Claimant argues that his taking a co-employee from the home site to the work site was a special errand for the employer for which he is sometimes paid and other times is not paid. It is a special errand because the trip is important or urgent and represents substantial conduct by the employee that is clearly beyond what is normally expected during the regular business day.  The trip is on behalf of the employer. The employer argues that the transportation is gratuitous and not required. However the facts are otherwise. Louis Jones who was one of the few employees’, who actually had a vehicle, was promised regular employment because of the fact that he had a vehicle.  Mr. Jones testified that he would arrive at the employer’s home base early in the morning at which time he would receive a work assignment and in addition he would typically be asked to transport other employees to the work site. The claimant testified that because he had a car the employer made it clear to him that he was more likely to get work each day then people who showed up with no car.  The basis for this preference is a) the employer knew the employee with a car would be able to get to the jobsite from the home base and b) employee with a car would also be able to transport other employees from the home base to the actual job site.  While there is no specific contract agreeing to provide transportation for these employees there had become a continued practice of the parties that Louis Jones would provide the transportation and take several employees with him. A custom developed where he was asked by the supervisor to provide transportation for fellow employees and was actually paid for trips that were longer than a certain distance. For shorter distances he was not paid but he was rewarded by getting continued regular employment.  The records indicate that he was reimbursed on several occasions including the day before the accident. The employer benefited by this particular arrangement because they would be able to employ more employees and receive payment for the work of those employees because Louis Jones was able to transport them to the scene. In fact if he wasn’t the one providing transportation the employer would not have been able to send out any of the other employees out because they would have had no way to get to the work place since most of these people work day by day and don’t have cars and have no way of getting anywhere other than by either public transportation or by other employees transporting them there.  If all employees had to rely on public transportation it could potentially take them so long to get to the work site that the work day could in fact be over or there may not be public transportation available to go on a direct route to the employer’s premises.  The employer greatly benefited by having employees who are willing to transport other co-employees to the work premises. Based upon these facts the special errand exception to the going and coming rule would apply.

Conclusion

In conclusion, the claimant is entitled to workers compensation benefits based upon any of the above theories.



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