Contract fails to save restaurant from liability since worker was employee

In Kansas, evidence that a worker was hired from an advertisement paid for by a company owner, the owner paid him, and the owner told him what to do shows that the worker was an employee of the company.

Case name: Trevizo v. El Gaucho Steakhouse, No. 102,985 (Kan. Ct. App. 04/08/11).

Ruling: The Kansas Court of Appeals held that a restaurant was responsible for an injured worker's benefits and not a general contractor.

What it means: In Kansas, evidence that a worker was hired from an advertisement paid for by a company owner, the owner paid him, and the owner told him what to do shows that the worker was an employee of the company.

Summary: A worker cut his finger with a saw while renovating a restaurant. As a result, his finger was amputated. He applied for workers' compensation, naming the restaurant and its general contractor as his employer. In a contract with the restaurant, the contractor stated that it had workers' compensation insurance. The restaurant argued that the general contractor should be responsible for the worker's benefits. The Kansas Court of Appeals held that the worker was an employee of the restaurant, so the contractor was not liable for benefits.

The court explained that the evidence strongly suggested that the restaurant had the right to control and supervise the worker's work and the right to direct his performance. The worker was hired from a radio advertisement paid for by the restaurant. The restaurant paid his wages, and the restaurant owner told him what to do on a daily basis. The worker and contractor said they never met, and the contractor did not instruct the worker as to his work duties.

The restaurant argued that the contractor contractually agreed to cover all workers working on the renovation. The court explained that the contract did not show the contractor's intent to employ workers or to insure those outside what state law would generally require. The court said the contract clause stating that the contractor had insurance was showing that the contractor met his statutory burden, not to insure those outside his ordinary legal obligation.

The restaurant next asserted that it relied on the contractor's assurance that he was providing workers' compensation insurance, but the court said the restaurant would still have to show an employer-employee relationship between the contractor and worker to prevail.

Read more at the WorkersComp Forum homepage.

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