Jose Franco was employed by tempSERVE, a temporary staffing agency. In July 2009, Franco was assigned to work for West Coast as a general laborer assisting Melgoza, a West Coast forklift driver to help load and unload trailers with pipe.
Every day when Franco reported to work at West Coast, he would locate Melgoza. Melgoza would then give Franco their lineup for the day. Franco spent the work day with Melgoza, receiving instructions from Melgoza regarding their tasks. He was never instructed or supervised by anyone from tempSERVE. Although West Coast could not fire Franco, West Coast could remove him from the job at any time. West Coast provided the hammer and table saw Franco used to do his job. However, Franco and tempSERVE provided Franco’s safety equipment, i.e., hard hat, gloves, eye protection and steel toed boots.
On September 28, 2009, a pipe struck Franco injuring his foot and knee. His medical bills and disability payments were paid by workers’ compensation insurance. Franco also filed a civil complaint for negligence against West Coast and Melgoza. West Coast and Melgoza moved for summary judgment on the ground that West Coast was Franco’s special employer and therefore Franco is statutorily barred from bringing an action against West Coast and Melgoza for personal injuries. The trial court agreed and granted the motion. The Court of Appeal affirmed in the unpublished case of Franco v West Coast Pipe Inspection.
In determining whether a special employment relationship exists, the primary consideration is whether the special employer has ‘[t]he right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not..”
Franco interprets his own testimony on West Coast’s supervision over him as not demonstrating the type of detailed control and direction necessary to find an employment relationship. However, contrary to Franco’s position, he provided unskilled labor and this labor was directly supervised by Melgoza. Thus, West Coast had the power to direct and control Franco.