Facts of the Case. An association retained an outside vendor to provide security services. The security
company assigned one of its guards to work at the association. The security company subsequently fired the guard – who then proceeded to sue the association, its president and an association employee for discrimination, harassment, retaliation and wrongful discharge. Did the guard prevail on these claims?
Ruling of the Court. The court ruled against the guard in the unpublished 2007 California Court of Appeals case of Thompson v. Oceanaire Homeowners Association, 2007 WL 1898511.
The guard, Wayman Thompson, was hired and fired by his actual employer, the security company. Therefore, in order to prevail on his claims against the association, Thompson was required to establish that the association was his “special employer.” The court held that Thompson did not meet this burden because the association did not exercise sufficient control over him or his job duties, did not train him or provide him with any job-related equipment, and the association’s property manager did not have the power to terminate his employment.
Acknowledging the right of community associations to oversee third party vendors who perform work on association property, the court concluded that an association:
“must be permitted to monitor the performance of the employees of service providers with which [it] contracts, and…must be able to do so without thereby becoming the special employer of those employees.”
Analysis. An association may, in some situations, be treated as the special employer of a vendor’s employee. This determination is a factual one, based in a large part upon who has the right of control over the employee’s activities. The more control an association retains over a vendor’s employees, the more likely a court will find the association to be a special employer – with all of the additional liability exposure which results from that designation. This is another good reason for boards and managers to periodically check with their insurance agents to make sure that the association is appropriately insured.