Court rules DOT contractor owes no worker’s comp for injured deputy

Robeson County sheriff's vehicle side view — Image from Robeson County Sheriff’s Office Facebook page

A split North Carolina Supreme Court has ruled that a Department of Transportation contractor does not have to cover part of the bill for a Robeson County deputy sheriff’s roadside injury.

Plaintiff Stephen Matthew Lassiter had argued that Truesdell Corporation should cover some of his worker’s compensation costs. Lassiter, a Robeson County deputy, was injured in 2019 while doing traffic control for a DOT project contracted to Truesdell.

The North Carolina Court of Appeals ruled in December 2023 that both the Robeson sheriff and the Truesdell Corporation should cover Lassiter’s worker compensation costs. The Supreme Court split, 4-3, in overturning the appellate decision involving Truesdell.

“Truesdell neither directed nor instructed the manner and method in which plaintiff carried out his duties,” Justice Tamara Barringer wrote for the majority. “Instead, plaintiff relied exclusively upon his law enforcement experience and training in managing the traffic flow. … These details of plaintiff’s traffic control work were independent of Truesdell’s instruction or supervision. No Truesdell representatives were present where traffic was being directed.”

“The extent of Truesdell’s control was twofold: Truesdell designated the locations to station [law enforcement officers] and the direction to send traffic,” Barringer added. “However, assigning a worker both a place and a task, by itself, does not suffice to create an employer-employee relationship.”

“The joint employment doctrine is related to, yet distinct from, the lent employee doctrine,” the majority opinion explained. “A joint employment relationship arises where a single employee, under contract with two employers, and under the simultaneous control of both, simultaneously performs services for both employers, and those services for each employer is the same as, or is closely related to, that for the other. A careful appraisal of the record reveals that plaintiff was not under sufficient control of Truesdell to create joint employment.”

Chief Justice Paul Newby agreed with “most of the majority’s analysis.” “I diverge with the majority on the element of control,” Newby wrote. “For this element, I would affirm the Court of Appeals’ determination that Truesdell exercised joint control over plaintiff alongside defendant Robeson County Sheriff’s Office (RCSO).”

“I would assign less weight than the majority to the fact that Truesdell did not micromanage how the law enforcement officers did their job,” the chief justice added.

While Newby labeled his opinion as concurring in part and dissenting in part, the court’s two Democrats dissented completely from the majority’s opinion.

“Truesdell Corporation (Truesdell) and the Robeson County Sherrif’s Department (RCSO) jointly employed Deputy Stephen Lassiter when he was injured while directing traffic for Truesdell’s highway construction project,” Justice Allison Riggs wrote. “I generally agree with the test articulated by the majority to clarify the joint employment doctrine, and I agree that the test applied by the Court of Appeals muddled the law.”

“However, I do not think that error changes the ultimate outcome,” Riggs added. “I would hold that there is sufficient factual evidence Truesdell should be jointly liable for Deputy Lassiter’s injuries because Truesdell had a ‘right to control or direct the details’ of his work.”

A lawyer representing the Robeson County sheriff warned the court during oral arguments in April that Lassiter’s case could have far-reaching impacts for retention and recruitment of law enforcement officers in North Carolina.

“The overwhelming evidence shows that the sheriff’s department controlled everything that plaintiff did at the site,” argued Duane Jones, Truesdell’s lawyer. “Truesdell only had minimal control at the very beginning when they … approved a plan that someone else came up with that had to be in conformity with what the DOT recommended. I don’t think that’s enough control.”

The Robeson sheriff’s lawyer disagreed.

“This is a project that covered two counties — Cumberland and Robeson. It covered several years time. This is a very large contract,” Greg Horner argued. “So Truesdell comes in. They’re able to hire my sheriff’s officers. And at the end of the day, they wash their hands of it and say, ‘We’re not liable.’ We don’t think that’s the right outcome.”

The high court’s decision could have significant policy implications, Horner warned.

“These law enforcement officers — not only in Robeson County, but statewide — depend on these moonlighting jobs for their income,” he said. “Many of these officers moonlight across a huge range of industries.”

If Truesdell wins, the “natural reaction” among sheriffs “is going to be to want to shut down moonlighting,” Horner predicted. The Robeson County Sheriff’s Office could lose deputies to agencies that can offer higher base pay, he said.

North Carolina could lose officers to “jurisdictions where moonlighting is encouraged,” Horner said. “That ultimately is one of the sheriff’s biggest concerns here.”

Lassiter’s lawyer also focused on the potential impact beyond his client’s specific case. “Here, candidly, it’s not going to be that much,” argued Stephen McIntyre of Lassiter’s potential for increased benefits. “But this is for the next man up. If they’re making a lot of money from this off-duty employment, the average weekly wage — if you find joint employment — those should reflect truly what he’s making in his employment as a law enforcement officer.”

Newby touted the value of law enforcement officers performing outside work.

“It benefits everybody to have the blue lights and all these things getting people’s attention,” he said. “It’s good for the community. It’s good for the safety of drivers.”

Yet Newby is “wrestling with” the scenario when an outside employer places a law enforcement officer in a dangerous situation.

“Is there only the workers’ comp recovery?” he asked. “Or is it better to say, no, they can sue … the other company?”

Justice Trey Allen asked whether a ruling against Truesdell could limit law enforcement officers’ outside employment. “If we rule for plaintiff, might that not discourage private employers from hiring officers?”

“Defendants Truesdell contend the Court of Appeals departed from the precedent set by our appellate courts for determining whether an employer qualifies as a joint-employer or whether no employer/employee relationship exists,” the company’s lawyers wrote when seeking the state Supreme Court’s review.

“When a ‘general employer’ lends an employee to a ‘special employer,’ the special employer becomes liable for workers’ compensation benefits only if (1) the employee has a made a contract of hire, express or implied, with the special employer, (2) the work being done is essentially that of the special employer, and (3) the special employer has the right to control the details of the work,” according to the court filing. “The test includes specifically that the ‘work being done is essentially that of the special employer.’”

“The Court of Appeals, however, departed from this test. The Court of Appeals concluded that while Plaintiff, at the time of his injury, was not performing the same nature of work as that of Defendant-Truesdell, this requirement ‘is not required to show joint employment under the joint employment doctrine.’ The Court of Appeals changed the test, reversed the Full Commission’s proper application of the test, and found Defendant-Truesdell liable for half of Plaintiff’s medical and indemnity expenses when Defendant-Truesdell was not an employer of Plaintiff,” Truesdell’s lawyers wrote.

The Appeals Court decision reversed part of an earlier ruling from the state Industrial Commission. Commissioners would have held the sheriff’s office solely responsible for paying Lassiter’s ongoing medical expenses.

Writing for a unanimous three-judge panel, Appeals Court Judge Jefferson Griffin noted the case’s potential to set a precedent.

“Our appellate courts have yet to address whether a law enforcement officer, working off duty as a traffic control officer, is an independent contractor excluded from coverage under the Workers’ Compensation Act; or whether he is to be considered an employee of the law enforcement agency for which he is primarily employed, an employee of the private corporation for which he is providing traffic control services, or a joint employee of both,” Griffin wrote.

In March 2019, Lassiter was off duty when a sheriff’s captain offered him a chance to conduct traffic work for a DOT bridge preservation project along Interstate 95. Lassiter accepted.

While performing that duty, under the captain’s supervision, Lassiter “was struck by a vehicle and sustained injuries to his head, arms, hands, and legs,” Griffin wrote. “Due to the severity of injuries, Plaintiff was airlifted to a hospital in Florence, South Carolina. Plaintiff underwent extensive treatment and two subsequent surgeries.”

Seeking worker’s compensation in April 2019, Lassiter listed both the sheriff’s office and Truesdell as his employers at the time of the injury. Both the sheriff and the contractor “denied the existence of employment,” Griffin wrote.

In November 2022 the Industrial Commission determined that Lassiter worked for the sheriff’s office but not Truesdell.

Griffin and his fellow Appeals Court judges rejected the argument that Lassiter was working as an independent contractor.

“Here, we recognize Plaintiff was, at the time of his injury, acting as a law enforcement officer, conducting traffic duty — an official duty of law enforcement officers,” Griffin wrote. “In so doing, Plaintiff retained his official status as he was neither acting solely on behalf of a private entity nor engaged in some private business of his own. Further, evidence at the hearing indicated Plaintiff was hired on the basis of his official status as a police officer, as required by Truesdell’s contract with NCDOT, and while undoubtably benefitting Truesdell by performing traffic duty, Plaintiff was also serving and protecting the safety of the community.”

“Plaintiff did not have the independent use of his skill, knowledge, or training as a law enforcement officer,” Griffin added. “He was required to comply with instruction from both Truesdell and RCSO.” Law enforcement supervisors “were relayed instructions through Truesdell who indicated to them the way in which traffic should flow and the number of officers approved to complete the service.”

Appellate judges diverged from the Industrial Commission on Truesdell’s responsibility in the case. “Plaintiff here was not under any express contract of employment with Truesdell. However, record evidence reflects the existence of an implied contract,” Griffin wrote. “We acknowledge Truesdell was not responsible for training Plaintiff, but Truesdell did hire, pay, and supervise Plaintiff.”

Griffin noted Truesdell’s oversight role. “Notably, Plaintiff was not originally scheduled to work on the date of his accident,” according to the Appeals Court opinion. Law enforcement supervisors “after consulting the plan and recommended officer count offered by Truesdell, believed there needed to be additional officers on site.”

They “contacted Truesdell to ask permission before calling Plaintiff to request his assistance in traffic control work. This indicates a consistent level of supervision or control which Truesdell had over the officers; if Truesdell had rejected the request for an additional officer or refused to present the idea to NCDOT, Plaintiff would not have been on the scene the night of his injury,” Griffin wrote.

The new decision featured a different take on the “joint employment doctrine” than the state Appeals Court had adopted in an earlier case, Whicker v. Compass Group USA. In that case, the court had rejected a claim of joint employment because the two employers engaged in different types of work.

“We recognize, instead, the joint employee doctrine specifically states the service being performed by the plaintiff for each employer must be the same or closely related to the service for the other, not that the nature of the work of each employer had to be the same or closely related,” Griffin explained. “For, if we were to accept the Court’s interpretation in Whicker, we would be effectively prohibiting, at a minimum, any off-duty law enforcement officer performing traffic duty from recovering from the company for which he was performing traffic duty, regardless of whether an express or implied contract existed, unless the officer was performing traffic duty for a private company whose business was also performing traffic duty.”

“Here, Plaintiff was, at the time of his injury: a single employee; under a contract of employment with both RCSO and Truesdell; under the simultaneous control of both RCSO and Truesdell; and performing a service similar to the service he performed for RCSO when performing traffic duty for Truesdell,” Griffin concluded. “Thus, we hold Plaintiff was jointly employed by both RCSO and Truesdell at the time of his injury.”

Judges Hunter Murphy and Toby Hampson joined Griffin’s opinion.

“Court rules DOT contractor owes no worker’s comp for injured deputy” was originally published on www.carolinajournal.com.