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Wiseman v. Dynair Tech of Arizona Inc.5/19/1998
t a special employment relationship existed. Wiseman agreed not to take a job with DynAir during and for 90 days after his assignment to DynAir. Here, as in Araiza, a contractual provision prohibiting sole employment with a special employer does not preclude the court from finding that Wiseman impliedly consented to a contract of hire with DynAir.
Ordinarily, " hen the employee arrives at the work site and the employer directs and controls his work, the legal [lent employee/special employer] relationship is established as a matter of law." Lindsey, 161 Ariz. at 459, 778 P.2d at 1355. Wiseman does not dispute accepting PDS's assignment to work at DynAir nor does he dispute working there for at least six weeks. At his deposition, he admitted that he saw his employment at PDS as a stepping stone to employment with DynAir.
Wiseman argues that DynAir did not direct or control the method or manner of his work because FAA rules and manufacturers' manuals govern his work. However, DynAir determined whether there was compliance with the FAA requirements, directed his work assignments and required him to document his work on forms. Wiseman admitted receiving a work card and an assignment from a DynAir supervisor at the beginning of each shift and returning the work card to the supervisor when he finished the job. If he completed a task before shift end, he reported to the supervisor for another assignment. DynAir demonstrated that the work cards contained step-by-step work instructions with references to manufacturers' manuals, drawings, and other technical data. Frequently, an inspector had to approve his work after he completed it for compliance with the FAA's regulations. These supervisory acts establish that DynAir directed and controlled Wiseman's work.
DynAir's lack of complete freedom in directing the method or manner of work is not dispositive of its employment relationship with Wiseman. PDS only directed Wiseman to show up for work at DynAir; it had no control over his method of work. Furthermore, the FAA certified Wiseman and required him to comply with FAA standards, facts consistent with Wiseman being subject to the direction and control of a special employer. See Nation, 145 Ariz. at 419 n.4, 701 P.2d at 1227 n.4 (rejecting contention that employee's status as a licensed professional nurse precluded a finding of an employment relationship). DynAir's direction and control of Wiseman's work was sufficient to imply that he consented to a contract of hire with DynAir.
Wiseman also contends that his subjective perception determines whether he accepted control or direction from DynAir. Further, he asserts that a jury question concerning implied consent exists because he did not perceive himself as having accepted direction or control from DynAir. However, as noted above, "for the lent employee doctrine to apply, the employee need only be aware of and consent 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 724.
Wiseman knew that PDS was a labor contractor and that as an employee of PDS he would be assigned to work for another employer. His subjective conviction that he did not receive direction or control from DynAir over the manner of his work does not change the objective facts necessary to show implied consent to a contract of hire. As a matter of law, he worked under an implied contract of hire with DynAir.
Wiseman also asserts that his relationship to DynAir is analogous to a subcontractor's employee's relationship to a general contractor. The record does not support this argument. Wiseman admitted that he most frequently worked
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