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Employment Law No. 01-0825, 7/3/2003. Click here for the full text of this decision FACTS: The issue in this case is whether an employee can have more than one employer for purposes of the Workers’ Compensation Act and its exclusive remedy provision. HOLDING: Reversed and rendered. Neither the definitions of “employer” and “employee” under the act nor the exclusive remedy provision expressly forecloses the possibility that there may be more than one employer. The definitions do not provide that a general employer ceases to be the employee’s employer for workers’ compensation purposes when another person exercises control over the details of the employee’s work and the employee is thereby expressly or impliedly in the service of that third person under a contract of hire. And in examining the Labor Code’s overall scheme for workers’ compensation and for protecting workers, the court concludes that the act’s decided bias in favor of employers electing to provide coverage for their employees supports the conclusion that the act permits more than one employer for workers’ compensation purposes. These purposes of the act are carried out by recognizing that the express definitions of “employer” and “employee” and the exclusive remedy provision may apply to more than one employer. An employee in Marleny Alvarado’s (the respondent) situation will be working for her general employer (i.e., the temporary staffing provider), but will also be subjected to laboring in the workplace and under the direction of the general employer’s client company. Some client companies may carry workers’ compensation insurance while others may not. An employee injured while working under the direct supervision of a client company is conducting the business of the general employer and that employer’s client. The employee should be able to pursue workers’ compensation benefits from either. If either has elected not to provide coverage, but still qualifies as an “employer” under the act, then that employer should be subject to common law liability without the benefit of the defenses enumerated in �406.033. Temporary workers by definition move from one client company to another. They do not know who will be directing their work from day to day. The only constant in their work is that they are employed by their general employer, to whom they look for payment of wages and their work assignments. The purposes underlying the Workers’ Compensation Act and its definitions of “employer” and “employee” indicate that the general employer is, and should be, an “employer” of a temporary worker even if a client company directs the details of that employee’s work when the employee is injured. Further, an employee should not be placed in the position of trying to determine, perhaps at his or her peril, which of two entities was his or her employer on any given day or at any given moment during a day. The court finds nothing in the Texas Workers’ Compensation Act that would preclude applying its definitions to both a general employer that provides temporary workers and that employer’s client company when the general employer, its client, and the employee fit within the express definitions. To the contrary, the purposes of the act are promoted in giving effect to definitions of “employer” and “employee” when they fit a provider of temporary workers and its client. The court thinks it prudent to emphasize that the court is deciding only whether there may be two employers for workers’ compensation purposes when a provider of temporary workers furnishes a worker to a client that controlled the details of the work at the time the worker was injured and there was no agreement between the provider of temporary workers and the client regarding workers’ compensation coverage. The court agrees with the concurring opinion in the court of appeals in this case that Smith v. Otis Engineering Corp., 670 S.W.2d 750 (Tex. App. – Houston [1st Dist. 1984], no writ), and Archem Co. v. Austin Industrial Inc. 804 S.W.2d 268 (Tex. App. – Houston [1st Dist. 1991], no writ), were incorrectly decided. Because the holding in Smithand Archemthat there can be only one employer for workers’ compensation purposes is at odds with the purposes and policies of the Workers’ Compensation Act and with this opinion, the court disapproves of those decisions. The court also disapproves of similar language in Coronado v. Schoenmann Produce Co., 99 S.W.3d 741 (Tex. App. – Houston [14th Dist.] 2003, no pet.). Alvarado was Tandem Staffing’s employee for workers’ compensation purposes because she and Tandem fell within the respective definitions of “employee” and “employer” under the act. The fact that Web Assembly Inc. actually controlled the details of Alvarado’s work at the time she was injured, and thus was also an employer within the meaning of the act, does not preclude the applicability of the act’s provisions, including the exclusive remedy provision, to Tandem and Web. OPINION: Owen, J., Phillips, C.J.; Hecht, O’Neill, Jefferson, Smith and Wainwright, JJ., join. Schneider, J., did not participate in the decision. CONCURRENCE: Enoch, J. “I agree with the Court that the ‘right-to-control’ test should be rejected as the test to apply when determining who the ‘employer’ is in the workers’ compensation context. Unfortunately, though rejecting the test, the Court appears to rely on that test to conclude that Tandem is a joint employer in this case. So, I must disagree with the Court’s reasoning. Under the Texas Workers’ Compensation Act, an “employer” is defined as a person who makes a contract of hire and has workers’ compensation insurance coverage. Because Tandem hired Alvarado and purchased workers’ compensation insurance covering Alvarado, Tandem is an ‘employer’ entitled to receive the benefit of the Texas Workers’ Compensation Act’s exclusive remedy provision. Because I agree with the Court’s judgment, I concur.”

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