PJC General Negligence 2022

A GENCY AND S PECIAL R ELATIONSHIPS

PJC 10.5

PJC 10.5

Employment as Defense under Workers’ Compensation Act

QUESTION ______ On the occasion in question, was Paul Payne acting as an employee of ABC Company ? Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 10.5 illustrates how PJC 10.1 may be adapted to submit a defendant’s claim that a plaintiff was the defendant’s employee and thus is barred by the exclusivity of the Workers’ Compensation Act, Tex. Lab. Code § 408.001. In that event, the question would inquire about the plaintiff’s rather than the defendant’s employment status, and the definition of “employee” in PJC 10.1 should accompany the question. If the plaintiff seeks to avoid the exclusivity defense by rebutting the claim that he was the defendant’s employee with evidence that he was a borrowed employee of another, an inferential rebuttal instruction, as in PJC 10.3, should also be included. Similarly, PJC 10.2 may be adapted to submit a defendant’s claim that a plaintiff was the defendant’s borrowed employee and thus is barred by the exclusivity of the Workers’ Compensation Act. In that event, the above question should be reworded so that the phrase a borrowed employee of XYZ Company replaces the phrase an employee of ABC Company . Also, the definition of “borrowed employee” in PJC 10.2 should accompany the question. Temporary employment agency employment. When the plaintiff is an employee of a temporary employment agency, he may be considered the dual employee of both the employment agency and the client company if he is working under the direct supervision of the client company. Wingfoot Enterprises v. Alvarado , 111 S.W.3d 134 (Tex. 2003). If the employment agency maintains a policy of workers’ compensation insurance, the plaintiff is barred by the exclusivity of the Workers’ Compensation Act for claims against both the employment agency and the client com pany. Tex. Lab. Code § 93.004; see also Robles v. Mount Franklin Food, L.L.C. , 591 S.W.3d 158, 166–67 (Tex. App.—El Paso 2019, pet. denied). Staff leasing agency employment. When the plaintiff is an employee of a licensed staff leasing company and the staff leasing company procures worker’s com pensation insurance, both the leasing company and the client company may be entitled

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