temping & workers comp


So some suggested that my last entry was somewhat impenetrable.  I prefer to think that this was a product of the subject matter, the opaque and counterintuitive world of takings, and not my writing, so on to a much simpler area of the law – workers compensation!

I know nothing about workers comp law.  But when I saw a decision from the Maine SJC that took 8 months from argument to decision, was divided 4:3, had an amicus brief, and the longest dissent I think I've ever seen, I said to myself, "hmm, this decision could be important."  Happily, the attorney for the prevailing party is our own Allan Muir, so I could go right to the source and ask him wjhat this case was all about.  Doughty v. Work Opportunities Unlimited/Leddy Group, 2011 ME 126 [http://www.maine.gov/COURTS/opinions_orders/opinions/2011%20documents/11me126do.pdf].

Here's what he said: 

"For years, Maine businesses that use temporary employees and the temp agencies that supply them have assumed that the temp agency is responsible for carrying workers’ comp insurance as the employer of the temp, and that the client company is not the employer of the temp and so is not responsible for benefits under the Workers’ Comp Act.

The plaintiff was a temp working on-site at an assigned company.  He fell and hurt himself and was let go by the company.  He filed workers’ comp benefit and discrimination petitions against both the temp agency and the company, testing the conventional assumption that he had no remedy against the company under Title 39-A because he was not an employee. 

After a Workers’ Compensation Board Hearing Officer sided with the company, Doughty appealed to the Law Court.  The majority opinion, written by Justice Gorman, held simply that Doughty could not be an employee of the company because there was no 'contract of hire express or implied' between the company and Doughty.  The dissenting opinion, written by Justice Jabar and joined by Justices Alexander and Silver, concluded that, under common law control tests, Doughty was the employee of both entities under a dual or lent employee analysis, notwithstanding the statutory definition of 'employee' on which the majority relied. 

Putting aside the legal arguments, we pointed out that the Legislature could not have intended joint employment to exist because in such a case the workers’ comp insurers for both entities would charge premium and, at perhaps $10 per $100 of payroll for premium, the cost of hiring temps would be prohibitive and some of the advantage of hiring them would be eliminated, a result the majority admitted was 'illogical.'  The dissent, on the other hand, noted that this concern should be left to the two insurance carriers to 'underwrite' the problem.

At least from the standpoint of companies who use temp agencies, the temp agencies, and the amicus Project Staffing, Inc. represented by Tom Getchell, we won’t have to test the suggestions we made to the Court that a reversal would mean the end of the temp industry as we know it."

The merits of the specific arguments for or against the arguments made by the parties in this statutory context are beyond me.  What I am gathering, however, is that the majority took into consideration the practical consequences of its decision.  As I've blogged before, I think this is often a good thing.  There are times when a statute is clear, and it's not the job of the court to re-write it despite whatever the practical consequences may be.  But taking into account consequences when there is room for the court to do so is usually beneficial.  This underscores the usefulness of amici briefs to help identify those consequences.  I've noted before that the Massachusetts SJC regularly makes a call for amici briefs on subject matters it's going to hear.  I don't know how many briefs it receives in response, and it is a discretionary court, so it manages its case load.  But if the Maine SJC sees cases on its docket that might profit from amici briefs from time to time, making a similar call for such briefs could be a helpful step for everyone.