CACI No. 3706

Responsibility for Worker’s Acts

When one employer sends or loans an employee to work for another

employer, a special employment relationship may be created that affects

the duties and responsibilities between the two employers and the

employee. The arrangement may be temporary with a determined ending

date or event; or it may be open-ended. In this situation, the borrowing

employer is known as a “special employer” and the employee is referred

to as a “special employee.”

[Name of plaintiff] claims that [name of worker] was the employee of

[name of defendant lending employer] when the incident occurred, and

that [name of defendant lending employer] is therefore responsible for

[name of worker]’s conduct. [Name of defendant lending employer] claims

that [name of worker] was the special employee of [name of defendant

borrowing employer] when the incident occurred, and therefore [name of

defendant borrowing employer] is solely responsible for [name of worker]’s

conduct.

In deciding whether [name of worker] was [name of defendant borrowing

employer]’s special employee when the incident occurred, the most

important factor is whether [name of defendant borrowing employer] had

the right to fully control the details of the work activities of [name of

worker], rather than just the right to specify the result. It does not

matter whether [name of defendant borrowing employer] actually exercised

the right to control.

In addition to the right to control, you must consider all the

circumstances in deciding whether [name of worker] was [name of

defendant borrowing employer]’s special employee when the incident

occurred. The following factors, if true, may tend to show that [name of

worker] was the special employee of [name of defendant borrowing

employer]. No one factor is necessarily decisive. Do not simply count the

number of applicable factors and use the larger number to make your

decision. It is for you to determine the weight and importance to give to

each of these additional factors based on all of the evidence.

(a) [Name of defendant borrowing employer] supplied the equipment,

tools, and place of work;

(b) [Name of worker] was paid by the hour rather than by the job;

(c) The work being done by [name of worker] was part of the regular

business of [name of defendant borrowing employer];

(d) [Name of defendant borrowing employer] had the right to terminate

[name of worker]’s employment, not just the right to have [him/

her/nonbinary pronoun] removed from the job site;

(e) [Name of worker] was not engaged in a distinct occupation or

business;

(f) The kind of work performed by [name of worker] is usually done

under the direction of a supervisor rather than by a specialist

working without supervision;

(g) The kind of work performed by [name of worker] does not require

specialized or professional skill;

(h) The services performed by [name of worker] were to be performed

over a long period of time;

(i) [Name of defendant lending employer] and [name of defendant

borrowing employer] were not jointly engaged in a project of

mutual interest;

(j) [Name of worker], expressly or by implication, consented to the

special employment with [name of defendant borrowing employer];

[and]

(k) [Name of worker] and [name of defendant borrowing employer]

believed that they had a special employment relationship[./;] [and]

(l) [Specify any other relevant factors .]

New September 2003; Revised June 2013, December 2015, December 2016