Borrowed Employee in Illinois Sues Borrowing Employer For Retaliatory Discharge

Borrowed Employee Sues Borrowing Employer For Retaliatory Discharge.

Here’s what happened?
Plaintiff, an employee of Manpower, Inc., was assigned to defendant corporation for work. One day after the plaintiff testified in a workers’ compensation proceeding filed by one of defendant’s employees, plaintiff was told her services were no longer needed at defendant corporation and that she should seek reassignment at Manpower. She filed a retaliatory discharge tort action against the defendant corporation, contending she had been discharged because of her participation in the workers’ compensation proceeding, a violation of public policy. The defendant corporation contended it hadn’t fired her at all, that she was not its employee and, therefore, she hadn’t lost her job. She was free to work at any assignment her employer, Manpower, Inc., might have available for her skill set.

Can the employee maintain a retaliatory discharge action against defendant corporation?
In Hester v. Gilster-Mary Lee Corporation, 899 N.E.2d 589, 326 Ill. Dec. 372, 2008 Ill. App. LEXIS 1291(December 18, 2008), the trial court entered an order granting defendant’s motion to dismiss, finding that plaintiff had failed to state a cause of action. The appellate court disagreed, noting that in as much as the employee had functioned under the supervision of defendant’s managers, worked side-by-side with defendant’s employees, and received no real supervision from Manpower’s managers, she was the special employee of defendant.

The appellate court indicated that it was required to address two separate questions: first, whether an action for retaliatory discharge exists for a borrowed employee, an issue of first impression in Illinois, and second, whether Illinois public policy protected workers from discharge for testifying in a coworker’s claim hearing. Answering both in the affirmative, the court observed that all rights and remedies of the Workers’ Compensation Act apply to borrowed employees, that a borrowing employer is primarily liable for the payment of a borrowed employee’s workers’ compensation claim, and that the public policy considerations which led to recognition of an action for retaliatory discharge equally to a claim by a borrowed employee against a borrowing employer. According to the court, defendant’s argument ignored the nature of a borrowed-employee relationship. In the context of that relationship, the most severe sanction a borrowing employer could impose was to refuse all further work. In that context, the sanction was tantamount to a discharge.

For further information, See generally Larson’s Workers’ Compensation Law § 104.07. or go to LexisNexis Workers’ Compensation Law Center. This entry was written for our blog, and we appreciate the helpful insight this brings to our readers.

Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter (LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Attorney Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor. Tom can be reached at: compwriter@gmail.com.

Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.