Top NC court to decide whether DOT contractor must help pay for deputy’s injuries

The North Carolina Supreme Court will decide in the months ahead whether a contractor working for the state Department of Transportation must foot part of the bill for a deputy sheriff’s roadside injury.

A lawyer representing the Robeson County sheriff warned the court Thursday that Stephen Matthew Lassiter’s case could have far-reaching impacts for retention and recruitment of law enforcement officers in North Carolina.

The state Court of Appeals ruled in December 2023 that both the Robeson sheriff and the Truesdell Corporation should cover Lassiter’s worker compensation costs. He was injured in 2019 while doing traffic control work for a DOT project contracted to Truesdell.

The company is asking the state Supreme Court to reverse that decision. Truesdell argues that Lassiter was working for the sheriff, not the company, when he was hurt.

“The overwhelming evidence shows that the sheriff’s department controlled everything that plaintiff did at the site,” argued Duane Jones, the company’s lawyer. “Truesdell only had minimal control at the very beginning when they … approved a plan that someone else came up with that had to be in conformity with what the DOT recommended. I don’t think that’s enough control.”  

The Robeson sheriff’s lawyer disagreed.

“This is a project that covered two counties — Cumberland and Robeson. It covered several years time. This is a very large contract,” Greg Horner argued. “So Truesdell comes in. They’re able to hire my sheriff’s officers. And at the end of the day, they wash their hands of it and say, ‘We’re not liable.’ We don’t think that’s the right outcome.”

The high court’s decision could have significant policy implications, Horner warned.

“These law enforcement officers — not only in Robeson County, but statewide — depend on these moonlighting jobs for their income,” he said. “Many of these officers moonlight across a huge range of industries.”

If Truesdell wins, the “natural reaction” among sheriffs “is going to be to want to shut down moonlighting,” Horner predicted. The Robeson County Sheriff’s Office could lose deputies to agencies that can offer higher base pay, he said.

North Carolina could lose officers to “jurisdictions where moonlighting is encouraged,” Horner said. “That ultimately is one of the sheriff’s biggest concerns here.”

Lassiter’s lawyer also focused on the potential impact beyond his client’s specific case. “Here, candidly, it’s not going to be that much,” argued Stephen McIntyre of Lassiter’s potential for increased benefits. “But this is for the next man up. If they’re making a lot of money from this off-duty employment, the average weekly wage — if you find joint employment — those should reflect truly what he’s making in his employment as a law enforcement officer.”

Chief Justice Paul Newby touted the value of law enforcement officers performing outside work.

“It benefits everybody to have the blue lights and all these things getting people’s attention,” Newby said. “it’s good for the community. It’s good for the safety of drivers.”

Yet Newby is “wrestling with” the scenario when an outside employer places a law enforcement officer in a dangerous situation.

“Is there only the workers’ comp recovery?” he asked. “Or is it better to say, no, they can sue … the other company?”

Justice Trey Allen asked whether a ruling against Truesdell could limit law enforcement officers’ outside employment. “If we rule for plaintiff, might that not discourage private employers from hiring officers?”

The high court issued an order in March 2024 blocking the Appeals Court’s ruling temporarily. A new order last August blocked the Appeals Court’s decision indefinitely. A separate order confirmed that the Supreme Court would consider Lassiter’s case.

“Defendants Truesdell contend the Court of Appeals departed from the precedent set by our appellate courts for determining whether an employer qualifies as a joint-employer or whether no employer/employee relationship exists,” the company’s lawyers wrote when seeking the state Supreme Court’s review.

“When a ‘general employer’ lends an employee to a ‘special employer,’  the special employer becomes liable for workers’ compensation benefits only if (1) the employee has a made a contract of hire, express or implied, with the special employer, (2) the work being done is essentially that of the special employer, and (3) the special employer has the right to control the details of the work,” according to the court filing. “The test includes specifically that the ‘work being done is essentially that of the special employer.’”

“The Court of Appeals, however, departed from this test. The Court of Appeals concluded that while Plaintiff, at the time of his injury, was not performing the same nature of work as that of Defendant-Truesdell, this requirement ‘is not required to show joint employment under the joint employment doctrine.’ The Court of Appeals changed the test, reversed the Full Commission’s proper application of the test, and found Defendant-Truesdell liable for half of Plaintiff’s medical and indemnity expenses when Defendant-Truesdell was not an employer of Plaintiff,” Truesdell’s lawyers wrote.

The Appeals Court decision reversed part of an earlier ruling from the state Industrial Commission. Commissioners would have held the sheriff’s office solely responsible for paying Lassiter’s ongoing medical expenses.

Writing for a unanimous three-judge panel, Appeals Court Judge Jefferson Griffin noted the case’s potential to set a precedent.

“Our appellate courts have yet to address whether a law enforcement officer, working off duty as a traffic control officer, is an independent contractor excluded from coverage under the Workers’ Compensation Act; or whether he is to be considered an employee of the law enforcement agency for which he is primarily employed, an employee of the private corporation for which he is providing traffic control services, or a joint employee of both,” Griffin wrote.

In March 2019, Lassiter was off duty when a sheriff’s captain offered him a chance to conduct traffic work for a DOT bridge preservation project along Interstate 95. Lassiter accepted.

While performing that duty, under the captain’s supervision, Lassiter “was struck by a vehicle and sustained injuries to his head, arms, hands, and legs,” Griffin wrote. “Due to the severity of injuries, Plaintiff was airlifted to a hospital in Florence, South Carolina. Plaintiff underwent extensive treatment and two subsequent surgeries.”

Seeking worker’s compensation in April 2019, Lassiter listed both the sheriff’s office and Truesdell as his employers at the time of the injury. Both the sheriff and the contractor “denied the existence of employment,” Griffin wrote.

In November 2022 the Industrial Commission determined that Lassiter worked for the sheriff’s office but not Truesdell.

Griffin and his fellow Appeals Court judges rejected the argument that Lassiter was working as an independent contractor.

“Here, we recognize Plaintiff was, at the time of his injury, acting as a law enforcement officer, conducting traffic duty — an official duty of law enforcement officers,” Griffin wrote. “In so doing, Plaintiff retained his official status as he was neither acting solely on behalf of a private entity nor engaged in some private business of his own. Further, evidence at the hearing indicated Plaintiff was hired on the basis of his official status as a police officer, as required by Truesdell’s contract with NCDOT, and while undoubtably benefitting Truesdell by performing traffic duty, Plaintiff was also serving and protecting the safety of the community.”

“Plaintiff did not have the independent use of his skill, knowledge, or training as a law enforcement officer,” Griffin added. “He was required to comply with instruction from both Truesdell and RCSO.” Law enforcement supervisors “were relayed instructions through Truesdell who indicated to them the way in which traffic should flow and the number of officers approved to complete the service.”

Appellate judges diverged from the Industrial Commission on Truesdell’s responsibility in the case. “Plaintiff here was not under any express contract of employment with Truesdell. However, record evidence reflects the existence of an implied contract,” Griffin wrote. “We acknowledge Truesdell was not responsible for training Plaintiff, but Truesdell did hire, pay, and supervise Plaintiff.”

Griffin noted Truesdell’s oversight role. “Notably, Plaintiff was not originally scheduled to work on the date of his accident,” according to the Appeals Court opinion. Law enforcement supervisors “after consulting the plan and recommended officer count offered by Truesdell, believed there needed to be additional officers on site.”

They “contacted Truesdell to ask permission before calling Plaintiff to request his assistance in traffic control work. This indicates a consistent level of supervision or control which Truesdell had over the officers; if Truesdell had rejected the request for an additional officer or refused to present the idea to NCDOT, Plaintiff would not have been on the scene the night of his injury,” Griffin wrote.

The new decision featured a different take on the “joint employment doctrine” than the state Appeals Court had adopted in an earlier case, Whicker v. Compass Group USA. In that case, the court had rejected a claim of joint employment because the two employers engaged in different types of work.

“We recognize, instead, the joint employee doctrine specifically states the service being performed by the plaintiff for each employer must be the same or closely related to the service for the other, not that the nature of the work of each employer had to be the same or closely related,” Griffin explained. “For, if we were to accept the Court’s interpretation in Whicker, we would be effectively prohibiting, at a minimum, any off-duty law enforcement officer performing traffic duty from recovering from the company for which he was performing traffic duty, regardless of whether an express or implied contract existed, unless the officer was performing traffic duty for a private company whose business was also performing traffic duty.”

“Here, Plaintiff was, at the time of his injury: a single employee; under a contract of employment with both RCSO and Truesdell; under the simultaneous control of both RCSO and Truesdell; and performing a service similar to the service he performed for RCSO when performing traffic duty for Truesdell,” Griffin concluded. “Thus, we hold Plaintiff was jointly employed by both RCSO and Truesdell at the time of his injury.”

Judges Hunter Murphy and Toby Hampson joined Griffin’s opinion.

The post Top NC court to decide whether DOT contractor must help pay for deputy’s injuries first appeared on Carolina Journal.