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Onceblue Enterprises

12/18/2003

l.App. 731.) In Sweet, the court held that a person who agreed to assume and pay all wages due laborers hired by a contractor was not an employer, but "was loaning money to the contractor," and the "law does not allow a lien for money loaned to a building contractor to allow him to carry out his contract." (Sweet, supra, at pp. 795-796.)


Here, the undisputed evidence shows Garcia Construction was the actual employer of its work force. Unlike in Primo, Personnel did not even assist Garcia Construction in assembling a work force. Personnel's vice-president, Brian Lanari, testified in deposition that Personnel neither recruited employees for Garcia Construction nor intended to do so, and Garcia Construction never asked Personnel to provide any workers.


On April 3, 2000, the contract date, Garcia and Garcia Construction's two other employees were already working on the City's project. Before the contract date, Garcia Construction sent to Personnel copies of the employees' drivers' licenses, payroll tax withholding forms and other documents. Personnel added the employees to the payroll without obtaining employment applications, interviewing them, requiring them to sign any conditions of employment or providing them with any employment information such as a handbook.


On April 3, Garcia informed Personnel he was the project manager for Garcia Construction and earned a specified weekly salary for pay periods ending March 28 and April 4. Garcia also informed Personnel of the hours and pay rates of Garcia Construction's other employees for the same pay periods. On April 7, Personnel issued paychecks on its account, and Personnel's office manager signed reports in which she stated she supervised the payment of persons employed by Garcia Construction. For the weeks following the April 4 pay period, and up until September, Personnel followed this same procedure with existing and new employees Garcia Construction told Personnel to add to the payroll.


Moreover, Personnel's president, Jack Lamberson, testified in deposition that Personnel did not pay workers' compensation insurance premiums for the work force. Lamberson also said Garcia Construction determined the hours of employees' work, what type of work they performed and what project they would work on, and had the unilateral right to fire workers and inform Personnel to take them off the payroll. Garcia confirmed in a declaration that he made all decisions regarding the work force, and " hen people were no longer working, there would be no hours turned into Personnel . . . and consequently Personnel . . . would no longer send paychecks for them." In other words, workers could leave Personnel's supposed "employ" without even speaking with Personnel.


Additionally, as in Primo, Personnel did not supervise the work force. In a declaration, Garcia stated Garcia Construction was "responsible for supervising all work performed under the Subcontract." When asked who was responsible for supervising the work force, Lanari testified "I don't think that it ever crossed my mind."


This case is further analogous to Primo because Personnel's primary function was advancing funds to Garcia Construction because of its cash flow problems. In a declaration, Garcia stated that under his subcontract with Kiewit, "I would not be paid for work performed until several weeks after the time I had to pay the people working on the Project. For this reason, I needed to obtain funds to pay for the Project labor which I would repay from subcontract payments." Although Garcia claimed he was "technically an employee of Personnel," he also stated he "was still at all relevant times the principal of . . . Garcia Construction . . . and ant

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