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Security Guard "Joint Employers" Decision
by Michael Blahy

Deputy Morgan sprained his ankle chasing a shoplifter down the stairs from the Brookshire Grocery Store (Brookshire) manager’s office.

On February 19, 2014, while working a part-time security job, Deputy Cleon Morgan Sr. spotted a female shoplifting and found several pieces of merchandise concealed on her person. He escorted the shoplifter to the store manager’s office to see how they wish to proceed. Rather than banning the shoplifter from the store, the store manager insisted that charges be pressed, and she be arrested. Deputy Morgan handcuffed her and placed her under arrest.

The shoplifter asked to use the restroom. When the cuffs were removed, she ran for it and Deputy Morgan pursued, injuring himself bad enough to be off work for five weeks.

The health and accident insurer paid the initial medical bills, but later, the Sheriff Department said that it was a workers’ compensation claim with both the Jefferson County Sheriff’s Department and Brookshire liable.

Brookshire considered Deputy Morgan an independent contractor and objected to being classified as a “joint employer” and challenged the opinion. An administrative law judge heard the case and concluded that at the time of the injury, both Brookshire and the Jefferson County Sheriff’s Department were indeed “joint employers”. The Full Commission accepted the administrative law judge’s findings. Brookshire appealed to the Arkansas Court of Appeals which affirmed the previous ruling, so they appealed to the Supreme Court of Arkansas.

Section 220 of the Restatement (Second) of Agency sets out factors to be considered when determining whether a person is an independent contractor or an employee. These include:

  1. the extent of control which, by the agreement, the master may exercise over the details of the work

  2. whether or not the one employed is engaged in a distinct occupation or business

  3. the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision

  4. the skill required in the particular occupation

  5. whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work

  6. the length of time for which the person is employed

  7. the method of payment, whether by the time or by the job

  8. whether or not the work is a part of the regular business of the employer

  9. whether or not the parties believe they are creating the relation of master and servant

  10. whether the principal is or is not in business
In this case, Deputy Morgan was hired by the Jefferson County Sheriff’s Department in January of 2010 and works in the patrol division. After working for a year, he was allowed to request off-duty employment. His request was approved, but he had to follow the department policy which included:


  • No more than twenty hours of part-time work per week

  • Required to wear [their] uniform

  • Requited to carry [their] gun and handcuffs

  • Authorized to make arrests

  • Allowed to drive his patrol vehicle to his security job

  • Obligated to serve a warrant if he encountered a person who had an outstanding warrant

  • All part-time work had to be approved by his superiors

  • Report to the sheriff’s department that he was “10-8” (in service, working part time) upon arrival at a work site
Deputy Morgan testified that the only direction received from Brookshire was to watch for shoplifters and “make sure that nobody was left in the store at closing time”. He didn’t interview with anyone from Brookshire prior to accepting the posting. When he first started, another deputy showed him is duties.

The scheduling of off-duty security work was not performed by Berkshire, but Berkshire did pay the off-duty deputies their $18.00 per hour based on a sign-in sheet at the store. Brookshire provided no benefits and didn’t withhold anything from the pay.

In a 4 – 3 decision, the Supreme court concluded: “While Brookshire provided Deputy Morgan with compensation, that is of no moment because both employees and independent contractors are paid. Considering the Restatement factors, there is very little in the record to suggest that Deputy Morgan was not an independent contractor. Deputy Morgan testified that he is a certified law enforcement officer twenty-four hours a day. The sheriff’s department required that he secure from them ‘permission’ to provide security for Brookshire. Brookshire did not control what he wore—he was required by the sheriff’s department to wear his uniform; Brookshire did not provide his tools—again department policy specified that he carry his gun and handcuffs. Brookshire never trained him—his job duties were shown to him by a fellow deputy. Deputy Morgan stated that his formal training as a law enforcement professional came from the police academy.

Further, there is nothing in the record to indicate that Deputy Morgan should be considered an employee of Brookshire. Brookshire did not interview him for his position.

He was required to secure “permission” from the sheriff’s department to work at the store. His time at Brookshire was scheduled by an individual who apparently was not directly connected with the store. Deputy Morgan was essentially a uniformed deputy who was assigned a time slot to provide a police presence at Brookshire to maintain law and order. Finally, Deputy Morgan testified that his work as a deputy sheriff took precedence over his security duties during his scheduled time at Brookshire.

Looking at the remaining Restatement factors, while it is true that Brookshire is a business entity, Brookshire is only in the business of selling groceries. Deputy Morgan described his job as providing a police presence to maintain order and prevent loss of property. Accordingly, all the factors that are to be considered in determining if Deputy Morgan was an employee or an independent contractor indicate that Deputy Morgan was an independent contractor. We therefore reverse and remand this case to the Workers’ Compensation Commission for further proceedings consistent with this opinion.

(Brookshire Grocery Company v. Cleon Morgan, Sr. (Arkansas Supreme Court, 2018 ARK. 62))

Decided: March, 2018
Published: November, 2018

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