3706. Special Employment--Lending Employer Denies Responsibility for Worker's Acts Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 When one employer sends or loans an employee to work for another employer, a special employment relationship may be created that affects the duties and responsibilities between the two employers and the employee. The arrangement may be temporary with a determined ending date or event; or it may be openended. In this situation, the borrowing employer is known as a "special employer" and the employee is referred to as a "special employee." [Name of plaintiff] claims that [name of worker] was the employee of [name of defendant lending employer] when the incident occurred, and that [name of defendant lending employer] is therefore responsible for [name of worker]'s conduct. [Name of defendant lending employer] claims that [name of worker] was the special employee of [name of defendant borrowing employer] when the incident occurred, and therefore [name of defendant borrowing employer] is solely responsible for [name of worker]'s conduct. In deciding whether [name of worker] was [name of defendant borrowing employer]'s special employee when the incident occurred, the most important factor is whether [name of defendant borrowing employer] had the right to fully control the details of the work activities of [name of worker], rather than just the right to specify the result. It does not matter whether [name of defendant borrowing employer] actually exercised the right to control. In addition to the right to control, you must consider all the circumstances in deciding whether [name of worker] was [name of defendant borrowing employer]'s special employee when the incident occurred. The following factors, if true, may tend to show that [name of worker] was the special employee of [name of defendant borrowing employer]. No one factor is necessarily decisive. Do not simply count the number of applicable factors and use the larger number 3706. Special Employment--Lending Employer Denies Responsibility for Worker's Acts Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 to make your decision. It is for you to determine the weight and importance to give to each of these additional factors based on all of the evidence. (a) [Name of defendant borrowing employer] supplied the equipment, tools, and place of work; (b) [Name of worker] was paid by the hour rather than by the job; (c) The work being done by [name of worker] was part of the regular business of [name of defendant borrowing employer]; (d) [Name of defendant borrowing employer] had the right to terminate [name of worker]'s employment, not just the right to have [him/her] removed from the job site; (e) (f) [Name of worker] was not engaged in a distinct occupation or business; The kind of work performed by [name of worker] is usually done under the direction of a supervisor rather than by a specialist working without supervision; (g) The kind of work performed by [name of worker] does not require specialized or professional skill; (h) The services performed by [name of worker] were to be performed over a long period of time; (i) [Name of defendant lending employer] and [name of defendant borrowing 3706. Special Employment--Lending Employer Denies Responsibility for Worker's Acts Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 employer] were not jointly engaged in a project of mutual interest; (j) (k) (l) [Name of worker], expressly or by implication, consented to the special employment with [name of defendant borrowing employer]; [and] [Name of worker] and [name of defendant borrowing employer] believed that they had a special employment relationship[./; [and] [Specify any other relevant factors.] _______________________________________________________________________________ New September 2003; Revised June 2013, December 2015, December 2016