A police officer for a city was working off-duty providing traffic control for a construction company. He wore his police uniform while performing this work. The company's supervisor assigned the officer to an intersection. When work at the intersection was complete, a different supervisor told the officer that his work was done and he could take a break. However, the first supervisor told him to go back into the intersection to make sure it didn't "get jammed up." Shortly after, the officer was struck and injured by a car.
Off-duty work was not required by the city. Officers pursuing off-duty work were required to file a secondary work permit. The officer did not seek a permit related to the work he did for the construction company. Therefore, the city was not aware of his off-duty work.
When the company hired an officer to control traffic, the officer contacted a company supervisor, who would direct the officer where to proceed. The company's supervisors determined the work location of officers and the hours they would work. The company paid the officers for their work.
The officer sought workers' compensation benefits, listing the city and the company as his employers. The officer said he considered the construction company to be his employer on the day of the accident. The Department of Labor and Industries allowed the claim to proceed against the city and denied the claim against the company, finding that there was no employer-employee relationship. The Board of Industrial Appeals reversed and found that the officer was an employee of the company but not the city. The superior court affirmed the board's decision. The company appealed.
Was the department correct in finding the officer was not an employee of the
A. Yes. The company had no authority to control how the officer performed traffic control.
B. Yes. The worker's belief that he was an employee of the company did not establish an employment relationship.
C. No. The city was unaware that the officer was working off duty and had no way of exerting control over his work for the company.
How the court ruled: C. The Washington Court of Appeals held that the officer was an "employee" of the company when he was injured, making it liable for his benefits. Gary Merlino Construction Co., Inc. v. City of Seattle, No. 66403-4-I (Wash. Ct. App. 04/09/12).
The court concluded that the construction company had the right of control over the officer. The court explained that the officer's failure to file a secondary work permit prevented the city from knowing he was performing off-duty work. Also, the company set the work hours, filled out the officer's time card, and paid him. The company directed him where and when to work.
A is incorrect. The court pointed out that the officer was bound to follow traffic laws and exercise professional judgment just as other licensed professionals do in the course of their work. However, the company directed the officer's performance of his job by the supervisor telling him to return to the intersection to direct traffic just before the accident. The company also had the right to terminate the officer.
B is incorrect. The court explained that the officer was not on duty for the city, was not being paid by the city, and was not assigned to the duty by the city. The officer consented to employment with the company.
Editor's note: This feature is not intended as instructional material or to replace legal advice.
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June 7, 2012
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