Was Injured Highway Worker a ‘Borrowed Employee?’

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In Illinois, if a “borrowed employee” injures a worker, the borrowing employer's workers' compensation coverage likely applies. If that's the case, then the injured worker can't sue the employee's general (original) employer for negligence; his exclusive remedy is workers' compensation.

In a recent case, the injured plaintiff was working on a grinding project to prepare a highway for paving. Millstone was his employer. 

For more on the "borrowed employee" doctrine in Illinois or the rest of the U.S., turn to Simply Research.

A cement truck driver, Rodgers, worked for Ready Mix, which assigned him to the project and paid him for his work. Millstone, however, reimbursed Ready Mix for the payments.

Ready Mix assigned Rodgers to the cement truck and Rodgers had responsibility for operating it. Millstone didn’t provide Rodgers any equipment or supplies. 

The Millstone supervisor at the site gave a brief “pep talk” before the workers started the job that day. The talk focused on how employees would coordinate efforts. But the supervisor didn’t tell Rodgers how to do his work.

Rodgers allegedly struck a piece of equipment the plaintiff was helping to operate, causing severe injury. Rodgers reported the accident to Ready Mix. The Millstone supervisor dismissed him from the jobsite.

The plaintiff sued Ready Mix, which owned the cement trucks, for negligence. Ready Mix asserted that Rodgers was Millstone’s “borrowed employee.” Thus, workers compensation applied and the plaintiff’s exclusive remedy was workers compensation.

Borrowed employee status hinges on who has control over the employee. When determining whether an alleged borrowing employer has the right to control the employee, Illinois courts have considered such factors as: the manner of hiring; the mode of payment; the nature of the work; the manner of direction and supervision of the work; and the right to discharge. 

The trial court dismissed the case on the basis that Rodgers was a borrowed employee. The plaintiff appealed.

Did the lower court make a mistake by ruling that Millstone borrowed Rodgers?

A. Yes. There was evidence that both companies may have exercised some control over Rodgers’ activities.

B. No. Rodgers was being paid by Ready Mix and the evidence showed Ready Mix had the right to control all of Rodgers' work.

If you selected A, you agreed with the court in Tolbert v. Odum Concrete Products, No. 5-23-0548 (Ill. Ct. App. Div. 04/04/25), which held that the lower court erred by concluding that Rodgers was a borrowed employee.

The court found there was a genuine dispute as to whether Millstone controlled the manner and direction of Rodgers’ work. First, while Rodgers was paid by Ready Mix, Millstone reimbursed Ready Mix for that payment. Also, the Millstone supervisor gave at least some type of instruction to Rodgers during the pep talk and also told him to leave the jobsite.

On the other hand, it was Ready Mix that instructed Rogers to go to the jobsite. “There was no evidence … to indicate that Rodgers could have declined the work assigned by Ready Mix,” the court wrote.

In addition, Millstone did not provide Rodgers any tools or equipment to perform his job and did not have control over how operated the truck.

Because it was unclear whether Rodgers was Millstone’s borrowed employee, the court reversed and sent the case to the trial court to look at the facts and make that determination.

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