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Wiseman v. Dynair Tech of Arizona Inc.5/19/1998
ts establish the first factor as a matter of law. The employee's consent to a contract of hire may be implied from the circumstances. Araiza v. U.S. West Business Resources, 183 Ariz. 448, 452, 904 P.2d 1272, 1276 (App. 1995). A contract of hire is implied if the employee accepts the assignment from the general employer to work for the special employer and accepts control, direction, and supervision by the special employer. Avila v. Northrup King Co., 179 Ariz. 497, 502, 880 P.2d 717, 720 (App. 1994). Consent can be implied even if the job is only for a short time. Lindsey v. Bucyrus-Erie, 161 Ariz. 457, 459, 778 P.2d 1353, 1355 (App. 1989) (three-day duration of employment was sufficient to imply consent).
The issue of implied consent to a contract of hire frequently arises in cases where the employee works for a labor contractor. A labor contractor hires employees and sells their services as temporary help to other employers. Araiza, 183 Ariz. at 452, 904 P.2d at 1276. A special employer obtains workers from a labor contractor and enjoys immunity from civil suits brought by lent employees injured while working for it. The lent employee "need only be aware of and consent to the facts that give rise to the lent employee relationship. He need not be aware of and consent to the legal consequences of such facts." Avila, 179 Ariz. at 504, 880 P.2d at 722. Where the facts of employment are undisputed, the existence of an employment relationship is a matter of law.
Wiseman argues that a jury could infer that he did not consent to employment with DynAir because his contract was with PDS, PDS paid him, only PDS could fire him, and his PDS contract prohibited him taking a job with DynAir during his assignment and for 90 days thereafter. We disagree. This arrangement is typical when a labor contractor assigns an employee to a special employer. See Avila, 179 Ariz. at 499, 880 P.2d at 719 (labor contractor employed lent employee and paid his wages; employee impliedly consented to employment with special employer); Lindsey, 161 Ariz. at 458-59, 778 P.2d at 1354-55 (employee of Manpower consented to employment with special employer); Nation v. Weiner, 145 Ariz. 414, 701 P.2d 1222 (App. 1985) (nurse employed by temporary medical personnel agency had implied contract of hire with hospital to which she was assigned.) Wiseman's contract and payment arrangement were no different from those in the usual lent employee situations.
In Araiza, the plaintiff argued that an implied contract of hire did not exist because the contract between Manpower and U.S. West indicated that Manpower was his sole employer. 183 Ariz. at 452, 904 P.2d at 1276. Manpower employed Araiza and assigned him to U.S. West Business Resources. We concluded that the contract did not overcome the true employment relationship because "' t is not the appellation which the parties give to the relationship, but rather the objective nature of the relationship, determined upon an analysis of the totality of the facts and circumstances of each case which is determinative.'" Id. at 453, 904 P.2d at 1277, quoting Anton v. Industrial Comm'n of Arizona, 141 Ariz. 566, 568, 688 P.2d 192, 194 (App. 1984).
When a labor contractor supplies its employee to another employer, the employee may be deemed to have two employers, both immune from tort liability for injuries the employee receives on the job. Lindsey, 161 Ariz. at 458, 778 P.2d at 1354. Contracts between labor contractors and their employees frequently restrict the employee from seeking sole employment with the special employer or declare that the worker is the employee of the labor contractor alone. Araiza decided that such a contract provision did not preclude finding tha
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