Daily Decisions: That City Cop Who Had a Gun and Ordered You to Stop Was Not “Employed” by the City

Certainly you’ve been driving around Seattle and come across some road construction. And certainly you’ve encountered a Seattle Police Department officer directing traffic at the construction site, telling you where to go, telling you to stop, telling you to slow down, &c. He or she was in uniform, had a badge, probably had a gun, and looked pretty darn official, I’d imagine.

Well, you might be surprised to learn that the officer you saw was not an employee of the City of Seattle (at least for workers’ comp purposes) according to the Court of Appeals in Gary Merlino Construction Company v. City of Seattle (Division 1, April 9, 2012).

Seattle Police Department Officer Danny Allen was directing traffic for Merlino Construction in connection with a Merlino-run construction project. Apparently, off-duty uniformed officers generally perform this service for construction companies — and the construction companies pay the officers (not the City) for their time. Officer Allen was in full uniform during his work at the Merlino site: he wore his “police uniform, including a badge, name tag, gun, and a marked police department traffic vest.”

There wouldn’t be a case about all this if something bad didn’t happen. Well, Officer Allen was injured in a traffic accident while working at the Merlino site. Accordingly, Officer Allen filed an application for workers’ comp benefits, listing both the City of Seattle and Merlino as his employers. The question for the Court of Appeals, therefore, was which entity actually employed Officer Allen at the time of the accident.

Before getting to the merits, these workers’ comp cases have an interesting standard of review. The BIIA makes a decision, which can be appealed to the Superior Court. The hearing in Superior Court is de novo, but the record evidence is limited to that which was presented to the BIAA. The Court of Appeals can then review the Superior Court’s decision, which is also a review de novo. However, despite this purportedly “de novo” review, the Superior Court “may substitute its own findings and decision for the Board’s only if it finds ‘from a fair preponderance of credible evidence,’ that the Board’s findings and decisions are incorrect.” And then the Court of Appeals’s review “is limited to examination of the record to see whether substantial evidence supports the findings made after the superior court’s de novo review, and whether the court’s conclusions of law flow from the findings.”

I have no idea how a “fair preponderance” differs from a “preponderance.” And I have no idea how a “de novo” review is actually a “substantial evidence” review while also being a “fair preponderance” review.

In any event, to determine whether Officer Allen was a City employee or a Merlino employee at the time of the injury, the Court of Appeals stated the following:

For purposes of workmen’s compensation, an employment relationship exists only when (1) the employer has the right to control the servant’s physical conduct in the performance of his duties, and (2) there is consent by the employee to this relationship.

And because a simple two-prong test is insufficient to answer the question, the first prong of the “employment” test — known as the “control” prong — is itself determined by a seven-part balancing test:

In determining whether such a right to control exists, we may examine the following factors: (1) who controls the work to be done; (2) who determines the qualifications; (3) who sets pay and hours of work and issuing paychecks; (4) who has day-to-day supervision responsibilities; (5) who provides work equipment; (6) who directs what work is to be done; and (7) who conducts safety training.

In this case, the Court determined that these factors favored Merlino being in control by a margin of 5-0-2. (No word on whether the two ties were resolved by shootout and, if so, who won.)

As for the second prong of the initial two-prong test, the Court concluded that Officer Allen consented to Merlino’s control. So both prongs were satisfied for Merlino. Merlino was therefore Officer Allen’s employer for purposes of the workers’ comp system.

An interesting side-note: Merlino argued on appeal that Officer Allen did not consent (and never would have consented) to forfeiting employment status with the City, “because doing so would result in an irrational relinquishment of his privilege of qualified immunity.” However, this issue was not raised below, so the Court declined to address it. But it seems like a loser to me. This case determined “employment” under the workers’ comp scheme. There’s no reason the law could not treat Officer Allen as an employee of Merlino for workers’ comp purposes, but continue to grant him qualified immunity as a police offer for other purposes. The law does that sort of thing all the time. For example, self-regulatory organizations like the NASD generally are given qualified immunity from suit because of their quasi-governmental nature, but they are also protected from suit by courts’ determinations that they are not engaged in “state action,” since they are private entities. So you really can have it both ways.


One thought on “Daily Decisions: That City Cop Who Had a Gun and Ordered You to Stop Was Not “Employed” by the City

  1. Pingback: Monday Morning-ish Mash-up: April 16, 2012 | Ziff Blog

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