ADJ10054510 · June 25, 2024

The WCJ found CVS was the special employer based on undisputed testimony that CVS controlled the applicant's work activities, including daily instructions, reporting, and discipline, beyond mere provision of equipment and paperwork.

From the decision · page 7WHETHER CVS' PROVISION OF A WALKIE-TALKIE AND THE APPLICANT'S COMPLETION OF LOSS PREVENTION PAPERWORK ARE ENOUGH CONTROL TO TRANSFER RISK FROM UNIFIED TO CVS IN ORDER TO MEET THE DEFINITION OF A SPECIAL EMPLOYER.

CVS had the right to direct and control the applicant's work activities and actually exercised that right daily.

Favours Defendant prevailed

This fact established CVS as the special employer liable for workers' compensation coverage.

From the decision · page 8The undisputed facts in this matter as per Applicant's testimony evidence that CVS had the right to direct and control the Applicant's activities and actually exercised such right. Specifically: the CVS manager would tell Applicant specifically what to do each day (MOH/SOE, supra, at 8); Applicant would report in to the CVS manager at the start of each shift and such manager would tell him what to do and where to be each day in the store (Id., at 5:22-6:1); Applicant would only receive instruction from CVS employees (Id., at 6:1-5, 6:12-15, 7:4-5, ); Applicant was advised by his general employer Unified to follow the instructions of CVS (Id., at 12-13); Applicant was trained by CVS as to what to do in the event he identified a perpetrator during his shift (Id., 7:16- 19).

Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168; Caso v. Nimrod Productions, Inc. (2008) 163 Cal.App.4th 881

An employee may have more than one employer; special employment requires control and benefit to both employers.

The WCJ applied these standards to find CVS was the special employer based on control and direction of the applicant's work.

From the decision · page 8An employee may have more than one employer. The characteristics of such dual employment are: 1) that the employee is sent by one employer (the general employer) to perform labor for another employer (the special employer); 2) rendition of the work yields a benefit to each employer; and 3) each employer has some direction and control over the details of the work. (See Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168 [44 Cal.Comp.Cases 134]; Meloy v. Texas Co. (1953) 121 Cal.App.2d 691 [18 Cal.Comp.Cases 313]; Ridgeway v. Industrial Acc. Com. (1955) 130 Cal.App.2d 841 [20 Cal.Comp.Cases 32]; Doty v. Lacy (1952) 114 Cal.App.2d 73 [17 Cal.Comp.Cases 316]; Caso v. Nimrod Prods. (2008) 163 Cal.App.4th 881.) In determining whether a special employment relationship exists, the primary consideration is whether the Special Employer has the right to direct and control the activities of the worker or the manner and method in which the work is performed, whether exercised or not. (Caso, supra, at 888.) When such a special employment relationship is found, the borrowing employer becomes liable for workers' compensation coverage. (Ibid.)

Applicant's unrebutted testimony that CVS controlled his work activities and Unified instructed him to follow CVS's instructions.

From the decision · page 7Applicant testified extensively about how CVS management directed and controlled his work activities daily. In addition, the Applicant testified that he "never received any specific work instructions from Unified.' (MOH 6:2-3). The only evidence of Unified giving any direction to the Applicant at all is the Applicant's credible testimony that Unified told him to follow CVS' instructions. (MOH 7:12-13). This unrebutted testimony demonstrates that CVS was provided the right to and did indeed exercise substantial control over the Applicant's work.