NC Appeals Court Says Injured Off-Duty Law Officers are Joint Employees

The question has arisen many times around the country: Is an injured, off-duty law officer, moonlighting on security or traffic control, considered an employee of the law enforcement division or a private company?

The North Carolina Court of Appeals answered this month with a firm “both,” deciding that an officer in that scenario is jointly employed. The severely injured deputy sheriff is now due workers’ compensation benefits from the sheriff’s insurer and from a bridge-building company’s carrier, the court said in Stephen Lassiter vs. Robeson County Sheriff’s Department, Synergy Coverage Solutions, Truesdell Corp. and the Phoenix Insurance Co.

The court also, for the first time, addressed the question of whether a moonlighting officer is considered an independent contractor, excluded from the grand bargain of the workers’ compensation statute.

“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,” Judge Jefferson Griffin wrote in the Dec. 19 opinion. “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.”

The case began in 2017 when Truesdell Corp., an Arizona-based infrastructure company, was restoring an Interstate 95 bridge in Robeson County, in southeast North Carolina. Truesdell contracted with officials at a local police department and with the Robeson County Sheriff’s Office to supply officers for traffic control.

Seeing that the job would require more officers, the sheriff’s captain asked deputy Stephen Lassiter if he could work traffic that October night. Shortly after midnight, a pickup truck hit Lassiter, causing extensive injuries to his head, arms, hands and legs, the court opinion explained. He underwent surgery at least twice and has had extensive treatment and rehabilitation.

Lassiter filed a workers’ compensation claim, listing the Robeson County Sheriff’s Office and Truesdell as the employers. Both denied they were employers.

A deputy commissioner at the North Carolina Industrial Commission found that Lassiter was an employee of the sheriff, but not the bridge company. On appeal, the full Industrial Commission agreed. The sheriff’s office appealed to the Court of Appeals, arguing that the deputy was an independent contractor, or, barring that conclusion, that he was jointly employed.

The appeals court noted that North Carolina appellate courts had never addressed the question of when an off-duty law officer should be considered an independent contractor. State law and court decisions dating back as far as 1944, list eight factors that must be considered when determining if a worker is independent, the court said. These include having independent use of his or her special skills, working at a fixed price, and not being subject to discharge just because the worker has a different way of doing things.

In 1992 the North Carolina Supreme Court also found that an off-duty police officer killed while working motel security was still a peace officer, employed by the police department, not the motel.

With Lassiter, the appeals court noted that the deputy was a sheriff’s officer, but that he also had been hired by the bridge builder to perform traffic control. He had no independent ability to freely direct traffic, but was required by Truesdell to follow an engineer’s traffic plan. Lassiter also had provided a W9 tax form to the bridge firm, and was subject to other Truesdell supervision, the court noted.

“In considering this record evidence, we hold there existed an implied contract of employment between Truesdell and plaintiff as Truesdell, while not responsible for training plaintiff, maintained a level of supervision and control over the plaintiff’s work for them, had independent hiring authority, and paid plaintiff directly for his services,” the opinion reads.

The appellate court differed from its own 2016 opinion in Whicker vs. Compass Group USA, in which the judges said that for joint employment to exist, the two employers had to be engaged in similar type 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,” the Lassiter opinion reads.

If the 2023 appeals court were to accept the Whicker reasoning, “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.”

The Industrial Commission did not err in its decision that Lassiter was not an independent contractor, but was wrong in finding that Truesdell was not liable as a joint employer, the appeals court concluded.

Phoenix Insurance Co. is the workers’ comp carrier for Truesdell. Synergy Coverage provides comp insurance for the Robeson County Sheriff’s Office. Attorneys in the Lassiter case could not be reached Tuesday.

Courts in other states have handed down differing rulings on similar issues through the years. In 2020, for example, the Texas Supreme Court famously ruled that an off-duty deputy was in the course and scope of his employment while traveling to an after-hours job as a security guard at a college football game. A runaway wheel crashed through the windshield of Ruben Orozco’s patrol car, killing him. The Texas court found that his widow was due workers’ compensation benefits from El Paso Sheriff’s Department, where Orozco had worked full-time.

In Florida, courts have found that off-duty officers are either law enforcement employees or are in the employment of the private firm that had hired them – but not both, the state attorney general has said in official opinions.

Under Florida law, an off-duty officer is to be considered a government worker only if he or she is injured while performing law enforcement duties, not private security duties. A cop responding to a crime across the street from the firm where he was working security was not due benefits from the city. But an officer working security at a hospital who was injured on premises was considered an employee of the hospital, not the police department, Florida courts have decided.