CACI 2923 Borrowed Servant/Dual Employee

California Civil Jury Instructions CACI

2923 Borrowed Servant/Dual Employee

[[Name of plaintiff] claims [he/she/nonbinary pronoun/[name of decedent]] was [name of defendant]’s employee at the time of the incident even though [he/she/nonbinary pronoun] was primarily employed by [name of primary employer].]


[[Name of plaintiff] claims [he/she/nonbinary pronoun/[name of decedent]] was employed by both [name of defendant] and [name of primary employer] at the time of the incident.]

In deciding whether [name of plaintiff/decedent] was [name of defendant]’s employee, the most important factor is whether [name of defendant] had the right to control the work of [name of plaintiff/decedent], rather than just the right to specify the result. It does not matter whether [name of defendant] exercised the right to control. Sharing information or coordinating efforts between employees of two companies, by itself, is not enough to establish the right to control.

In addition to the right of control, you must also consider all the circumstances in deciding whether [name of plaintiff/decedent] was [name of defendant]’s employee. The following factors, if true, may show that [name of plaintiff/decedent] was the employee of [name of defendant]:

(a)[Name of defendant] supplied the equipment, tools, and place of work;

(b)[Name of plaintiff/decedent] was paid by the hour rather than by the job;

(c)The work being done by [name of plaintiff/decedent] was part of the regular business of [name of defendant];

(d)[Name of defendant] had the right to end its relationship with [name of plaintiff/decedent];

(e)The work being done by [name of plaintiff/decedent] was [his/her/nonbinary pronoun] only occupation or business;

(f)The kind of work performed by [name of plaintiff/decedent] is usually done under the direction of a supervisor rather than by a specialist working without supervision;

(g)The kind of work performed by [name of plaintiff/decedent] does not require specialized or professional skill;

(h)The services performed by [name of plaintiff/decedent] were to be performed over a long period of time;

(i)[Name of defendant] and [name of plaintiff/decedent] acted as if they had an employer-employee relationship;

(j)[Name of plaintiff/decedent]’s duties to [name of defendant] were only for its benefit;

(k)[Name of plaintiff/decedent] consented to the employment with [name of defendant].

Directions for Use

Read the first bracketed paragraph for cases raising the borrowed-servant theory. Read the second bracketed paragraph for cases involving dual employment.

Secondary factors (a)–(k) come from the Restatement Second of Agency, section 220.

Sources and Authority

“Under common-law principles, there are basically three methods by which a plaintiff can establish his ‘employment’ with a rail carrier for FELA purposes even while he is nominally employed by another. First, the employee could be serving as the borrowed servant of the railroad at the time of his injury. Second, he could be deemed to be acting for two masters simultaneously. Finally, he could be a subservant of a company that was in turn a servant of the railroad.” (Kelley v. Southern Pacific Co. (1974) 419 U.S. 318, 324 [95 S.Ct. 472, 42 L.Ed.2d 498], internal citations omitted.)

“When the nominal employer furnishes a third party with ‘ “men to do the work and places them under his exclusive control in the performance of it, [then] those men become pro hac vice the servants of him to whom they are furnished,” ’ under the loaned servant doctrine.” (Collins v. Union Pacific Railroad Co. (2012) 207 Cal.App.4th 867, 879 [143 Cal.Rptr.3d 849], original italics.)

“An employee may at the same time be under a general and a special employer, and where, either by the terms of a contract or during the course of its performance, the employee of an independent contractor comes under the control and direction of the other party to the contract, a dual employment relation is held to exist.” (Collins, supra, 207 Cal.App.4th at p. 877.)

“[A] finding of agency is not tantamount to a finding of a master-servant relationship.” (Kelley, supra, 419 U.S. at p. 325.)

“In this case … the evidence of contacts between Southern Pacific employees and PMT employees may indicate, not direction or control, but rather the passing of information and the accommodation that is obviously required in a large and necessarily coordinated operation. The informal contacts between the two groups must assume a supervisory character before the PMT employees can be deemed pro hac vice employees of the railroad.” (Kelley, supra, 419 U.S. at p. 330.)

“The determination of whether a worker is a borrowed servant is accomplished by ascertaining who has the power to control and direct the servants in the performance of their work, distinguishing between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking. There is thus a distinction between ‘authoritative direction and control’ by a railroad, and the ‘minimum cooperation necessary to carry out a coordinated undertaking’ which does not amount to control or supervision. The control need not be exercised; it is sufficient if the right to direct the details of the work is present. (Collins, supra, 207 Cal.App.4th at p. 879.)

“The special employment relationship and its consequent imposition of liability upon the special employer flows from the borrower’s power to supervise the details of the employee’s work. Mere instruction by the borrower on the result to be achieved will not suffice.” (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492 [162 Cal.Rptr. 320, 606 P.2d 355] [not a FELA case].)

“The question of whether a special employment relationship exists is generally a question of fact reserved for the jury.” (Collins, supra, 207 Cal.App.4th at p. 878.)

Contract terms are not conclusive evidence of the existence of the right to control. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 176 [151 Cal.Rptr. 671, 588 P.2d 811] [not a FELA case].)

Restatement Second of Agency, section 220 provides:

(1)A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.

(2)In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

(a)the extent of control which, by the agreement, the master may exercise over the details of the work;

(b)whether or not the one employed is engaged in a distinct occupation or business;

(c)the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d)the skill required in the particular occupation;

(e)whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f)the length of time for which the person is employed;

(g)the method of payment, whether by the time or by the job;

(h)whether or not the work is a part of the regular business of the employer;

(i)whether or not the parties believe they are creating the relation of master and servant; and

(j)whether the principal is or is not in business.

“Section 220 (1) of the Restatement defines a servant as ‘a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.’ In § 220 (2), the Restatement recites various factors that are helpful in applying that definition. While that section is directed primarily at determining whether a particular bilateral arrangement is properly characterized as a master-servant or independent contractor relationship, it can also be instructive in analyzing the three-party relationship between two employers and a worker.” (Kelley, supra, 419 U.S. at p. 324.)

“ ‘Following common law tradition, California decisions … uniformly declare that “[t]he principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. …” [Citations.] [¶] However, the courts have long recognized that the “control” test, applied rigidly and in isolation, is often of little use in evaluating the infinite variety of service arrangements. While conceding that the right to control work details is the “most important” or “most significant” consideration, the authorities also endorse several “secondary” indicia of the nature of a service relationship.’ Those ‘secondary indicia’ ‘have been derived principally from the Restatement Second of Agency.’ They generally ‘ “cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.” ’ ” (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 301 [111 Cal.Rptr.3d 787] [not a FELA case], internal citation omitted.)

“In 2006 the Restatement (Second) of Agency was superseded by the Restatement (Third) of Agency, which uses ‘employer’ and ‘employee’ rather than ‘master’ and ‘servant,’ Restatement (Third) of Agency, § 2.04, comment a, and defines an employee simply as a type of agent subject to a principal’s control. Id., § 7.07(3)(a).” (Schmidt v. Burlington Northern & Santa Fe Ry. (9th Cir. 2010) 605 F.3d 686, 690 fn. 3.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, §§ 179–182
2 Wilcox, California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for Conduct of Employees, § 30.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for Employee’s Torts, § 248.15 (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.33 (Matthew Bender)