ΒΆ 15 Pursuant to the loaned employee doctrine, an employee who is in the general employment of one entity may be loaned to another entity for the performance of special work, thereby becoming the employee of the entity to whom he has been loaned. Crespo v. Weber Stephen Products Co., 275 Ill.App.3d 638, 641, 212 Ill.Dec. 1, 656 N.E.2d 154 (1995). Whether a loaned employee status exists is generally a question of fact, but it constitutes a question of law if the facts are undisputed and capable of one inference.
As the court discusses in greater depth below, under Illinois law, the determination of whether a borrowed employee-employer relationship exists depends on the amount of control the alleged borrowing employer has over the employee. Crespo v. Weber Stephen Prods. Co., 275 Ill. App.3d 638, 641, 656 N.E.2d 154, 156 (1st Dist. 1995). In an earlier opinion in this case, this court concluded that there was a dispute of fact as to whether Defendant was a "borrowing employer," and thus protected from this FTCA lawsuit by the exclusive remedy provision of the IWCA, 820 ILCS 305/1 et seq. Luna v. United States, No. 00 C 1329, 2001 WL 664445 (N.D.Ill. June 13, 2001).
Since Belluomini, however, the Appellate Court of Illinois, without explicitly referencing Belluomini, has rendered two decisions which cause this court to question the assumption that an entity automatically becomes a "borrowing employer" whenever a Section 305/1(a)(4) "loaning employer" provides it with an employee. See Chaney v. Yetter Mfg. Co., 315 Ill. App.3d 823, 734 N.E.2d 1028 (4th Dist. 2000) (finding defendant to be a "borrowing employer" because it controlled the plaintiffs work); Crespo v. Weber Stephen Prods. Co., 275 Ill. App.3d 638, 656 N.E.2d 154 (1st Dist. 1995) (same). According to these courts, the definition of a "loaning employer," in Section 305/1(a)(4) of the IWCA "was not meant to establish or define who shall be a borrowing employer.
Other courts have disagreed with the Wasielewski interpretation. In Crespo v. Weber Stephen Products, Co., 275 Ill. App.3d 638, 656 N.E.2d 154 (1st Dist. 1995), after rejecting the reasoning set forth in Wasielewski, the court determined that an employee's status was a question of fact. In that case, a laborer assigned by a temporary employment agency to a second employer's shop was injured when his hand was crushed by a punch press.
define a borrowing employer-employee relationship. Crespo v. Weber Stephen Products Co., 275 Ill. App. 3d 638, 642, 656 N.E.2d 154, 157 (1995) (manual laborer injured in punch press accident while on loan from temporary employment agency to factory).ΒΆ 18 Whether an individual is a borrowed employee is generally a question of fact. A.J. Johnson Paving, 82 Ill. 2d at 348, 412 N.E.2d at 481. If the undisputed facts permit but a single inference, then the question becomes a question of law.
The First District disagrees with Wasielewski, stating, "[w]e reject this syllogistic approach and still would require an examination of the relationship between [alleged borrowing employer] and [employee]." Crespo v. Weber Stephen Products Co., 275 Ill. App.3d 638, 642, 656 N.E.2d 154, 157 (1995). Crespo stated that the purpose of the statutory definition of a "loaning employer" was to relieve an employee from having to establish the factual basis of employment between the employee and the loaning employer.
The question for us is whether Illinois law recognizes a statutory test under the IWCA for borrowing employers and whether the Navy satisfies that test. For a discussion of the factors included in the "control test," see, e.g., A.J. Johnson Paving Co. v. Indus. Comm'n, 82 Ill.2d 341, 45 Ill.Dec. 126, 412 N.E.2d 477, 480-81 (1980); Chaney v. Yetter Mfg. Co., 315 Ill.App.3d 823, 248 Ill.Dec. 737, 734 N.E.2d 1028, 1031 (2000); Crespo v. Weber Stephen Prods. Co., 275 Ill.App.3d 638, 212 Ill.Dec. 1, 656 N.E.2d 154, 156 (1995). The Navy characterizes this as a question of subject-matter jurisdiction.
The right to control the work is the primary factor to consider when evaluating whether a borrowed-employment relationship exists. Crespo v. Weber Stephen Products Co., 275 Ill. App. 3d 638, 641 (1995).ΒΆ 24 The plaintiff does not contest the defendant's right to control Carlos's work.
Since Chicago's Finest Workers and Belluomini, moreover, several appellate state courts have explicitly resisted the statutory argument that an entity automatically becomes a "borrowing employer" whenever a Section 305/1(a)(4) "loaning employer" provides it with an employee. See Chaney v. Yetter Mfg. Co., 315 Ill. App.3d 823, 734 N.E.2d 1028 (4th Dist. 2000) (finding defendant to be a "borrowing employer" because it controlled the plaintiffs work); Crespo v. Weber Stephen Prods., 275 Ill. App.3d 638, 656 N.E.2d 154 (1st Dist. 1995) (same). These cases teach that courts seeking to determine the status of defendants in this context under Illinois law must "examine the traditional factors that define the loaned-employee and borrowing-employer relationship," essentially by performing the second, "control" test discussed in Belluomini. Chaney, 315 Ill. App.3d at 828, 734 N.E.2d at 1032 (citing Crespo, 275 Ill. App.3d at 642, 656 N.E.2d at 157).
Crespo v. Weber Stephen Products Co., 275 Ill.App.3d 638, 641 (1995). The following factors support a finding that the borrowing employer had the right to control and direct the manner in which the employee performed his work: (1) the employee worked the same hours as the borrowing employer's employees; (2) the employee received instruction from the borrowing employer's foreman and was assisted by the borrowing employer's employees; (3) the loaning employer's supervisors were not present; (4) the borrowing employer was permitted to tell the employee when to start and stop working; and (5) the loaning employer relinquished control of its equipment to the borrowing employer.