Tyson Farms v. Uninsured Emp. Fund.

Tyson Farms, Inc., et al. v. Uninsured Employers’ Fund, No. 5, September Term, 2020 WORKERS’ COMPENSATION – DETERMINATION OF EMPLOYER- EMPLOYEE RELATIONSHIP – CO-EMPLOYMENT – Court of Appeals held that Court of Special Appeals erred in concluding, as a matter of law, that chicken farm owner and company that provided chickens were co-employers of farm worker at time that he was injured and erred in reversing trial court’s judgment. Court of Appeals determined that trial court properly denied motion for judgment, as evidence adduced at trial was susceptible to differing reasonable inferences, including inference that company did not exercise control over worker necessary to be deemed co-employer and thus was not co- employer of worker. Court of Appeals concluded that there was sufficient evidence from which reasonable juror could find—as jury did—that company was not co-employer of worker. Circuit Court for Worcester County Case No. 23-C-16-000233 Argued: October 5, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 5 September Term, 2020 ______________________________________ TYSON FARMS, INC., ET AL. v. UNINSURED EMPLOYERS’ FUND ______________________________________ Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. ______________________________________ Opinion by Watts, J. McDonald, J., dissents. ______________________________________ Filed: November 20, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-12-01 15:05-05:00 Suzanne C. Johnson, Clerk This case involves the question of whether an injured worker who is an employee of a chicken farm is also the employee of a company that through a contractual relationship with the owner of the farm furnishes chickens, feed, and other supplies, and instructions as to how to produce/grow the chickens. Stated otherwise, the issue concerns whether the owner of a chicken farm and the company that provides the chickens to be raised and ultimately retrieves/buys them from the farm owner are co-employers of a farm worker. More broadly, the case pertains to “employee” status in the workplace. This Court has recognized that “[a] worker may simultaneously be the employee of two employers.” Whitehead v. Safway Steel Prod., Inc., 304 Md. 67, 79 , 497 A.2d 803, 809 (1985) (citation omitted).

To determine whether an employer-employee relationship exists, this Court has established the following five factors: “(1) the power to select and hire the employee, (2) the payment of wages, (3) the power to discharge, (4) the power to control the employee’s conduct, and (5) whether the work is part of the regular business of the employer.” Mackall v. Zayre Corp., 293 Md. 221, 230 , 443 A.2d 98, 103 (1982). The most important factor in that determination, and indeed the decisive one, is the factor of control. See id. at 230 , 443 A.2d at 103 . Ordinarily, the question of whether an employer-employee relationship exists is for the jury to determine.

See id. at 230 , 443 A.2d at 103 . And, significantly, where the evidence supports an inference that more than one individual or company controls a person in the performance of a given duty, “the question of whether an employer-employee relationship exists is a question of fact to be determined by the jury.” Id. at 230 , 443 A.2d at 103 (citations omitted). In this case, Mauro Jimenez Garcia1 sustained an occupational disease of the lungs while working and residing on a chicken farm in Worcester County, Maryland, owned by Dai K. Nguyen, Ind. t/a TN, LLC.2 The chickens on the farm were raised for, and owned by, Tyson Farms, Inc., Petitioner. Pursuant to the Maryland Workers’ Compensation Act, Md. Code Ann., Lab. & Empl.

(1991, 2016 Repl. Vol.) (“LE”) §§ 9-101 to 9-1201, Garcia filed a claim with the Workers’ Compensation Commission against Nguyen. Because Nguyen did not have workers’ compensation insurance, the Uninsured Employers’ Fund (“UEF”), Respondent,3 became involved in the claim. Subsequently, Garcia and UEF impleaded Tyson into the claim.

Following a hearing, the Commission issued an award of compensation, determining that Garcia was a covered employee who sustained an occupational disease arising out of and in the course of his employment and that Nguyen and Tyson were co-employers of Garcia. Tyson sought judicial review in the Circuit Court for Worcester County and requested a jury trial. The circuit court conducted a two-day jury trial, at which the sole issue was whether Tyson was a co-employer of Garcia. After the conclusion of the evidence in the case, both UEF and Tyson moved for judgment.

The circuit court denied the motions. The jury returned a verdict in favor of Tyson, finding that Tyson was not 1 Garcia is listed as a petitioner in this case. 2 Nguyen owned two adjacent farms, the Carrera Farm and the Cayenne Farm (collectively, “the farm”). 3 Pursuant to LE § 9-1002, the purpose of UEF is “benevolent and remedial, that being to protect injured workers whose employers failed, either willfully or negligently, to carry workers’ compensation insurance for them.” W.M. Schlosser Co. v. Uninsured Employers’ Fund, 414 Md. 195, 210-11 , 994 A.2d 956, 965 (2010) (cleaned up). -2- Garcia’s co-employer. UEF noted an appeal, raising a single question for review—whether the circuit court erred in denying its motion for judgment. In a reported opinion, a majority of a panel of the Court of Special Appeals reversed the circuit court’s judgment, determining that no reasonable inference could be drawn from the evidence other than that Tyson was Garcia’s co-employer.

See Uninsured Employers’ Fund v. Tyson Farms, Inc., 243 Md. App. 406, 422 , 220 A.3d 429 , 438-39 (2019). The Court of Special Appeals concluded that “Tyson’s control over [] Garcia’s work was more than sufficient to establish an employment relationship as a matter of law[,]” reasoning that “Tyson’s extensive involvement in, and control over, [] Garcia’s day-to-day operation of the farm gave rise to an employment relationship as a matter of law.” Id. at 416, 417, 220 A.3d at 435, 436. The Honorable Steven B. Gould dissented and stated that, “[i]n [his] view, there are sufficient facts in the record to allow a reasonable jury to determine, as it in fact did here, that Tyson was not [] Garcia’s co-employer.” Id. at 422, 220 A.3d at 439 (Gould, J., dissenting). Against this backdrop, we must decide whether the Court of Special Appeals was correct in concluding that no reasonable inference could be drawn from the evidence presented at trial other than that an employment relationship existed between Tyson and Garcia and that the evidence established the employment relationship as a matter of law.

We hold that the Court of Special Appeals erred in concluding that the evidence was sufficient to establish that Tyson was Garcia’s co-employer as a matter of law and in reversing the circuit court’s judgment. Like Judge Gould, we conclude that there was sufficient evidence from which a reasonable jury could find—as it did—that Tyson was -3- not a co-employer of Garcia. The circuit court properly denied UEF’s motion for judgment, as the evidence adduced at trial was susceptible to differing reasonable inferences, including the inference that Tyson did not exercise the control over Garcia necessary to be deemed a co-employer. Accordingly, we reverse the judgment of the Court of Special Appeals.

BACKGROUND On June 27, 2014, Garcia filed a claim with the Commission against Nguyen. On the claim form, Garcia identified his work as a “chicken[ ]house tender” and stated that his occupational disease occurred by “[b]reathing dust, chemicals and ammonia in [the] chicken[ ]house[, s]pen[ding] 7-10 hours per day six days per week[, p]oor ventilation.” It became clear that Nguyen was an uninsured employer, i.e., Nguyen did not carry workers’ compensation insurance, and UEF was added as a party. Both Garcia and UEF filed requests to implead Tyson, a self-insured employer, and Tyson was added as a party to the claim. The Commission held a hearing and thereafter issued an award of compensation, determining that Garcia was a covered employee who sustained an occupational disease of -4- hypersensitivity pneumonitis4 and interstitial disease5 arising out of and in the course of his employment.

The Commission found that both Nguyen and Tyson were co-employers of Garcia at the time of his occupational disease. The Commission ordered Nguyen and Tyson to pay for Garcia’s “causally related medical expenses” and to pay compensation for temporary total disability. Tyson filed in the circuit court a petition for judicial review, contending, among other things, that the Commission erroneously found that the company was a co-employer and jointly and severally liable with Nguyen for payment of benefits and medical expenses. Tyson requested a jury trial.6 On June 19 and 20, 2018, the circuit court conducted a jury trial.

The sole issue before the jury was whether Tyson was a co-employer of Garcia. At 4 Stedman’s Medical Dictionary defines “hypersensitivity pneumonitis” as: [A] chronic progressive form of pneumonia with wheezing, dyspnea, and diffuse infiltrates seen on radiographs; occurs following exposure to any of a variety of antigens, sometimes occupational, and many names are given to cases with known types of exposure (such as farmer’s lung, maple bark stripper’s lung, chicken plucker’s lung, bagassosis, byssinosis, and humidifier lung); biopsy findings usually show patchy infiltration of alveolar walls with lymphocytes, plasma cells, and other inflammatory cells; can progress to irreversible interstitial fibrotic disease with restrictive pattern on pulmonary function, but in early disease most manifestations are reversible if offending antigen is identified and removed from environment. Hypersensitivity Pneumonitis, Stedman’s Medical Dictionary (Westlaw database updated Nov. 2014). 5 “Interstitial disease” is “a disease occurring chiefly in the connective-tissue framework of an organ.” Interstitial Disease, Stedman’s Medical Dictionary. 6 While the case was pending in the circuit court, on April 19, 2018, the Commission held a hearing and, on April 24, 2018, issued an order in which it determined that a double lung transplant recommended by the University of Maryland was reasonable and necessary, and ordered Nguyen and Tyson to provide “authorization for the surgery and appropriate follow up care as directed by the transplant team[.]” -5- trial, the following evidence was adduced. Tyson is said to be the largest chicken company in the world and sells chicken but does not own any chicken farms.

Instead, Tyson contracts with individual farmers, in Maryland, Delaware, Virginia, and elsewhere, to raise chickens that it owns. The farm owners operate the farms, and the chickens are raised in flocks according to Tyson’s guidelines. The owners may manage the farms themselves or employ workers, sometimes called managers, who are responsible for the day-to-day operation of the farms. The end goal is for Tyson to retrieve the chickens from the farm owners for a price and have them ready for sale as food to the public.

In 2009, Garcia began working on the subject chicken farm. He was hired by Terry Ung (“Mr. Ung”), who was the owner and manager of the farm at the time and was raising chickens for Tyson. When Garcia was hired, he took care of chickens and performed miscellaneous work and routine maintenance, such as removing dead chickens, doing yardwork, changing lightbulbs, and fixing doors. Mr. Ung became ill and had to undergo lung surgery, and Garcia began managing the farm.

At the end of 2009, Mr. Ung died and his widow, Lee Ung (“Ms. Ung”), who had no experience raising chickens, became the owner of the farm. Because of Ms. Ung’s lack of experience in raising chickens, Tyson representatives taught Garcia how to operate the farm. Garcia assumed day-to-day responsibility for the chickens and began residing at the farm. A few years later, in 2013, Ms. Ung sold the farm to Nguyen, who entered into a contract with Tyson.

Nguyen worked in information technology in Virginia at the time, where he resided, and purchased the farm as an -6- investment. Nguyen had no experience or training in raising chickens or operating a chicken farm. Nguyen kept Garcia on to manage the farm. As a witness for Tyson, Ronald Watkins, senior manager of live production for Tyson, testified about Tyson’s relationship with chicken farms and its contract.

Watkins testified that the subject contract is a standard contract that outlines Tyson’s obligations. Watkins testified that, under the contract, the owner/grower, Nguyen, is expected to provide housing for the chickens and the day-to-day husbandry or operation of the farm using technical advice from Tyson. Watkins testified that, under the contract, the owner/grower of the chickens is not considered an employee of Tyson and that this is specified in the contract. According to Watkins, under an owner’s contract with Tyson, Tyson is not involved in the hiring of workers on a farm and does not have the right to fire workers on a farm.

Watkins testified that Tyson also does not have the right to set the hours for farm workers; rather, the workers’ hours are controlled by the farm’s owner. Watkins testified that Tyson has the right to terminate a contract if certain conditions are not met, such as if there is evidence that the health or welfare of the chickens has been endangered or Tyson’s feed or medication schedule has been altered or supplemented. According to Watkins, in the case of an absentee owner—someone who owns, but does not live on, a farm—Tyson “like[s] to have” someone reside at the farm 24 hours a day, 7 days a week for the general operation of the farm and to respond if problems occur. On cross-examination, Watkins confirmed that in the contract the chickens are referred to as broilers and that there is a “Broiler Growing Guide” that sets forth best management practices that the owner of the farm is expected to follow.

Watkins testified -7- that if an owner does not “follow the programs and it leads to animal welfare issues or poor performance,” Tyson could terminate the contract. The contracts memorializing the relationship between Tyson and Nguyen are titled “Broiler Production Contract[s]” and encompass two farms with the same address—the Carrera Farm and the Cayenne Farm—and were admitted into evidence as Joint Exhibits 4 and 5.7 The terms of the two contracts were identical and both were signed on June 13, 2013. Under the contracts, Tyson retained title to and ownership of the chickens, feed, and medication, as well as the authority to determine the details of delivery to and pick-up from Nguyen of the chickens, feed, and medication. Tyson was required to provide veterinary services and technical advice and to comply with all applicable statutes, rules, regulations, and ordinances.

As the “producer,” i.e., farm owner, Nguyen was required: to “furnish labor, materials, and utilities”; to maintain bio-secure housing for the chickens, feed, and medication; to implement Tyson’s “recommended best animal management practices”; and to comply with all applicable statutes, rules, regulations, and ordinances. Consistent with Watkins’s testimony, under the contracts, Nguyen was identified as an independent contractor: “Producer is engaged in and is exercising independent employment. Producer is an independent contractor and may join any organization or association of Producer’s choice. Producer is not a partner, agent, or employee of, or joint venturer with,” Tyson.

Other than providing that Nguyen, as the producer, was required to furnish labor, the 7 Joint Exhibit 4 contained the contract for the Carrera Farm, as well as a Schedule A and a Schedule B. Joint Exhibit 5 contained the contract for the Cayenne Farm, as well as a Schedule A and a Broiler Growing Guide. Both contracts and Schedules A and B were signed and dated by the parties. The Broiler Growing Guide was neither signed nor dated. -8- contracts did not reference Garcia specifically or require that Garcia or anyone else live on the farm as an employee. The contracts also did not make any provision for the payment of labor by Tyson.

Under the contracts, Tyson had the right to terminate the contracts upon default by Nguyen, which included a failure to comply with any contractual provision. In the event of a default, Tyson could take immediate possession of the chickens, feed, and medication without further notice and use Nguyen’s houses containing its chickens to complete the production of the chickens at his expense. Nguyen also had the right to terminate the contracts “at any time with no less than ninety (90) days written notice.” Additionally, the contracts contained a paragraph entitled “Entire Agreement” that provided: This Contract, including the attached Schedules, contains the entire agreement between Producer and Company regarding the production of Broilers. This Contract supersedes all prior agreements between Producer and Company.

Producer understands and agrees that no agent, servant, or employee of Company has authority to make any oral modification of this Contract. Modification of this Contract may only be accomplished by written Instrument fully executed by Producer and an authorized representative of Company. (Cleaned up). Schedule A concerned how Nguyen was to be compensated for the production of the broiler chickens and set forth a formula for compensation based on the weight of the chickens.

Schedule B pertained to performance requirements for the producers/owners and housing specifications for the broilers. As a witness for Tyson, Vicky Palmer testified that she works as a broiler manager for Tyson, and that she supervises five service technicians who visit farms, making sure that the chickens are taken care of and that the farm is following all State and Federal -9- regulations related to animal welfare. Palmer testified that she also performs the same tasks as service technicians. Palmer testified that she knows Garcia and that he was the farm manager for Nguyen.

Palmer testified that, while working for Tyson, she visited the farm when both Mr. Ung and Nguyen owned it to give them various checklists about the nature of the product and advise of any changes that might need to be implemented. Palmer testified that, when Nguyen became the owner, he would be at the farm on the weekends, and if Nguyen was at the farm, then she would deal directly with him. If Nguyen was not at the farm, Palmer would communicate with him by phone or e-mail, and, if changes needed to be made, she would communicate those to Nguyen by phone. According to Palmer, when she would visit the farm and Nguyen was not present, she provided Garcia with guidance on how to follow animal welfare standards and other matters.

Palmer testified that when an absentee owner is not present, she deals with the worker who is left in charge. Palmer testified that, although she communicated with Garcia, she did not set his hours. Palmer also testified that Tyson did not hire Garcia, did not have the power to fire him, and did not pay him. On cross-examination, when asked whether she was familiar with the circumstance that Nguyen’s contract with Tyson could not have been signed unless Nguyen hired Garcia, Palmer responded: “That should never have been said.” According to Palmer, Tyson’s contract with the owner of a farm specifies that, if the owner does not live on the farm, then someone has to be on the farm,8 but the contract does not specify who the owner must hire.

Contrary to Palmer’s testimony, as noted above, the contracts did not require that 8 anyone live on the farm as an employee. - 10 - Palmer testified that because Nguyen is an absentee owner the person who would be left on the farm is whoever Nguyen chose to hire. Palmer also testified that Garcia took care of day-to-day operations but that she met with Nguyen on the farm almost every Friday. According to Palmer, most of the time, Nguyen was present on the farm when the chickens were picked up for processing, and Nguyen helped Garcia get the chickens out. Palmer confirmed that, in the event of a default under the contract, Tyson could go in and finish growing the flock of chickens on the farm.

On redirect examination, Palmer testified that default of the contract by Nguyen was not an issue when Garcia worked on the farm.9 On his own behalf, Garcia testified that he worked at the farm for five years, starting when Mr. Ung hired him. After Mr. Ung died and Ms. Ung became the owner, Garcia became the farm manager and Tyson taught him how to raise the chickens and perform maintenance. The Tyson employees taught Garcia “everything” about raising chickens, including “how the system worked, how to check the water levels, the feeding, temperature, fans, how they would work properly, how to turn them on and off automatically.” Garcia testified that Tyson employees taught him how to euthanize a chicken and how to tell if a chicken was ill. Tyson employees visited two to four times a week, but Palmer would visit more frequently if the chickens were ill.

Garcia testified that, every six weeks, Tyson 9 After the testimony of Watkins and Palmer, Tyson rested its case. At that time, Garcia’s counsel moved for judgment. The circuit court denied the motion, ruling that there was “a considerable amount of evidence . . . that [could] be interpreted by a reasonable mind, . . . in different ways, and their conclusions might differ as it relates to the ultimate question which is whether or not Tyson was in fact a co-employer of [] Garcia.” Counsel for UEF did not join the motion for judgment or independently move for judgment at that time. - 11 - employees would go over a flock visitation summary10 with him, concerning what maintenance was needed and things related to ventilation, water, and feeding. Garcia testified that Nguyen purchased the farm in 2013 and that Tyson employees advised Nguyen that Tyson needed to have somebody at the farm “24/7[.]” According to Garcia, Nguyen assured Tyson that he would have an employee at the farm, namely, him (Garcia).

Garcia testified that he was already living at the farm and continued living there after Nguyen purchased it. Although Nguyen did not live at the farm, he would visit to give Garcia his paycheck, but later sent the paychecks by mail. Garcia testified that, at first, Nguyen visited the farm two to four times a week, but then there were weeks when Nguyen did not visit. On cross-examination, Garcia acknowledged that, after Nguyen purchased the farm, he (Garcia) negotiated the amount of his pay with Nguyen.

Garcia confirmed that he received his paychecks from Nguyen and that he never received a paycheck from Tyson. Garcia testified that, unlike Tyson employees, he never wore a shirt that said “Tyson.” Garcia testified that, if there was a problem, a Tyson employee would talk with him to 10 A flock visitation summary is a report prepared by Tyson based on a six-week inspection of the chickens. Garcia testified that the summary contained information about maintenance work to be performed, ventilation, water, and feeding. Garcia testified that he would go over the summary with a Tyson representative.

A flock visitation summary dated December 19, 2013, was introduced into evidence as Garcia Exhibit 5. The summary contained notations such as “[r]emove old feed lids[,]” “[p]lease put standpipe on in [] (missing)[,]” and “[r]emove extra light[]bulbs[.]” Garcia’s counsel also introduced into evidence Exhibit 4, a Broiler Technician Report, Exhibit 6, a Tyson Grow-out Broiler Technician Audit Form, Exhibit 7, a document providing an overview of what needs to be done with the generator and alarm system, and Exhibit 8, a lighting program, as evidence of paperwork that Tyson representatives left at the farm. These documents generally provided information concerning the maintenance of the chickens and chicken houses. - 12 - correct the problem. Garcia confirmed that, during a deposition, he had testified that no Tyson employee could fire him, but instead could only ask Nguyen to fire him.

Garcia acknowledged that when he filed his workers’ compensation claim, he identified Nguyen as his employer, not Tyson. On his own behalf, Nguyen testified that he purchased the farm as an investment with the plan of having Garcia stay on to help because Garcia knew Tyson’s chicken growing process. Nguyen testified that he entered into a broiler production contract with Tyson, but that before the contract was signed, he, Tyson employees, and Garcia met and agreed that if Garcia remained with the farm, the contract could be signed. According to Nguyen, when he entered into the contract, Tyson was aware that he had no experience raising chickens.

Nguyen confirmed that the chickens belonged to Tyson and that they had to be fed according to Tyson’s guidelines with feed that Tyson provided. Nguyen’s understanding was that Tyson would provide guidelines and help out when Garcia encountered a problem. On cross-examination, Nguyen acknowledged that when he purchased the farm, he convinced Garcia to continue working for him. Nguyen testified that he understood that, under the terms of the contract, he provided the labor, but Tyson provided the chickens, feed, medication, and technical assistance.

On occasion, Tyson contacted Nguyen regarding modifications that needed to be made to comply with the contract. On a few occasions, Nguyen spoke with Palmer when she visited and, eventually, he authorized Garcia to act on his behalf in running the farm. Nguyen confirmed that he paid Garcia wages for running the farm and that he tasked Garcia with dealing with Tyson employees - 13 - when they visited the farm and he was not present. Nguyen testified that it was his obligation to take care of his employees and to service the contract.

Nguyen testified that he had the power to fire Garcia. Nguyen acknowledged that, under the contract with Tyson, he was an independent contractor, not a partner, agent, employee, or joint venturer with Tyson. Nguyen acknowledged that, after Garcia became sick and left the farm, he had a new tenant live on the farm (Garcia’s replacement) and afterward had a few complaint calls from Tyson. As a result of those calls, Nguyen spoke with the tenant and warned that if the tenant could not comply with Tyson’s requirements, he would have to find someone else.

Nguyen ended up firing the person and hiring someone else. Nguyen conceded that Tyson did not have the power to fire one of his employees. At the close of all of the evidence, Tyson’s counsel moved for judgment as a matter of law, contending that the only possible conclusion to be drawn from the evidence was that Tyson was not Garcia’s co-employer or employer. The circuit court denied the motion, ruling that there was evidence about which reasonable minds could differ and that the matter should be submitted to the jury.

After the circuit court ruled on Tyson’s motion for judgment, UEF’s counsel stated: “Just for the record, State would like to make a motion for judgment[,]” and acknowledged that the court’s “ruling would apply[.]” The circuit court denied the motion.11 11 At this time, upon questioning by his counsel and the circuit court, Nguyen advised that he wanted to withdraw his appeal and that he would continue to respond to Tyson’s appeal. - 14 - Next, the circuit court indicated that it had prepared jury instructions and a verdict sheet, and inquired as to whether there were any objections or requests. Tyson’s counsel advised the circuit court that he had no objections or requests as to the jury instructions or verdict sheet. Garcia’s counsel requested that additional language be included in the instruction on the employer-employee relationship, which the circuit court denied.12 UEF’s counsel made no objection to the proposed jury instructions or verdict sheet at that time. The circuit court instructed the jury, in pertinent part, as follows: In determining whether Mauro Jimenez Garcia is an employee of Tyson Farms, Inc., you should consider the following factors[:] the selection and hiring of Mr. Garcia, the payment of wages, the power to fire Mr. Garcia, the power of control over Mr. Garcia’s conduct, whether the work is part of the regular business of Tyson Farms, Inc., whether the parties believed they were creating an employer/employee relationship, whether the work is usually done in the environment under the direction of an employer or by a specialist without supervision, and the skill required in the occupation.

The most important factor is the power of control. One or more employers can employ an employee at the same time the employee sustains an accidental injury or occupational disease. The determination is made by applying the above factors to each potential employer as of the date of the accidental injury or the date of disablement for an occupational disease. The power to hire or discharge a worker can be vested in one person and the power of control in another.

Neither Tyson’s counsel nor UEF’s counsel raised any exceptions to the jury instructions. The jury returned a verdict finding that Tyson was not a co-employer of Garcia at Garcia’s counsel requested that the instruction be augmented to include language 12 from case law indicating that “the person having that power of control is the master.” Likewise, Nguyen’s counsel requested that the instruction be supplemented to include “that the power of control is the only one that in itself [] could be determinative[.]” The circuit court denied this request stating that the pattern instruction as modified by the court accurately covered the issue. Prior to trial, UEF had filed requested jury instructions containing a request for a similar instruction as to the factor of control. - 15 - the time of his injuries. On July 3, 2018, the circuit court issued a remand order, reversing the Commission’s finding that Tyson was a co-employer of Garcia and remanding the matter to the Commission for it to modify its prior decisions to indicate dismissal of Tyson as a party and to note payments to be made by Nguyen and UEF.

UEF noted an appeal. On November 22, 2019, a majority of a panel of the Court of Special Appeals reversed the circuit court’s judgment. See Tyson Farms, 243 Md. App. at 409 , 220 A.3d at 431. The Court of Special Appeals reasoned: [A]s a condition of its contract with [] Nguyen, Tyson required that [] Garcia remain on the farm 24 hours a day, 7 days a week, to manage its operation.

In the contract itself, Tyson’s 18-page Broiler Growing Guide detailed instructions and requirements for how to raise the chickens at each stage of their life cycle. This Guide included detailed instructions on how [] Garcia should adjust various factors such as the chickens’ food intake, light exposure, and ventilation, on a weekly, if not daily, basis. Further, Tyson’s employees taught [] Garcia everything he needed to know about raising the chickens, including how to operate the various systems involved in the process. Tyson’s employees inspected the farm before every new flock of chickens was delivered, came to the farm one to three times a week to evaluate how [] Garcia was raising the chickens, and subsequently informed [] Garcia of the tasks that he needed to complete to improve his performance.

Importantly, Tyson held the unilateral ability to terminate its relationship with [] Nguyen if [] Garcia did not comply with the requirements in the Contract or those given to him by Tyson employees. Finally, Tyson posted its own signage at the farm, provided the feed that [] Garcia was to give to the chickens, contracted for the treatment of litter, and provided veterinary services to the chickens that were placed on the farm. Taken in sum, Tyson’s extensive involvement in, and control over, [] Garcia’s day-to-day operation of the farm gave rise to an employment relationship as a matter of law. Id. at 416-17, 220 A.3d at 435-36.

The Court of Special Appeals concluded that the evidence “demonstrate[d] that differing inferences from the evidence [were] not possible,” that the evidence was “sufficient to establish an employment relationship as a matter of - 16 - law,” and that the circuit court erred in denying UEF’s motion for judgment. Id. at 422, 220 A.3d at 438-39 (cleaned up). In dissent, Judge Gould stated that, from his perspective, there were sufficient facts in the record to permit a finding that Tyson was not Garcia’s co-employer. See id. at 422, 220 A.3d at 439 (Gould, J., dissenting).

Judge Gould explained: Tyson’s representative testified at trial that: (1) Tyson did not select or hire [] Garcia; (2) [] Nguyen, not Tyson, set and paid [] Garcia’s wages; (3) Tyson had no ability to fire [] Garcia; (4) Tyson had no ability to set [] Garcia’s work hours; and (5) Tyson would communicate with [] Nguyen about changes in practices for raising chickens. In addition, [] Nguyen testified that: (1) he authorized [] Garcia to act on [] Nguyen’s behalf in running the farm, from which a jury could reasonably have concluded that Tyson’s interactions with [] Garcia were in [] Garcia’s capacity as [] Nguyen’s agent, not as Tyson’s employee; (2) it was [] Nguyen’s obligation to take care of his employees and service the contract with Tyson; (3) only [] Nguyen had the power to terminate [] Garcia’s employment; and (4) [] Nguyen had the contractual ability to terminate his grower contract with Tyson and enter into a contract with another poultry company, suggesting that [] Nguyen, rather than Tyson, had ultimate control over whether [] Garcia continued to have a job raising chickens. The Court of Appeals . . . reminded us not to confuse control of the workplace with control of the worker. With that in mind, in my view the evidence in this case allowed for the reasonable inference that, notwithstanding the specificity in Tyson’s contractually-required procedures and practices for raising chickens, Tyson did not have the requisite control over [] Garcia to be considered his employer.

At a minimum, . . . the evidence cut both ways. I would, therefore, affirm the judgment of the circuit court. Id. at 424-25, 220 A.3d at 440 (Gould, J., dissenting) (cleaned up). On January 21, 2020, Tyson petitioned for a writ of certiorari, raising the following two issues: 1.

Did the court err in not allowing the jury to resolve conflicting facts and inferences regarding whether [] Garcia was Tyson’s employee? - 17 - 2. Did the court err in concluding that no reasonable jury could find that [] Garcia was not Tyson’s employee, even though Tyson’s contract was with the owner of the chicken farm, and Tyson did not hire (or fire) [] Garcia[,] pay him[,] set his hours or wages[,] or have a contract with him? (Emphasis in original). On March 11, 2020, this Court granted the petition.

See Tyson Farms, Inc. v. Uninsured Employers’ Fund, 467 Md. 692 , 226 A.3d 235 (2020). DISCUSSION13 The Parties’ Contentions Tyson contends that the Court of Special Appeals erred in concluding that the issue of whether Tyson had the power of control over Garcia was a question of law and not a question for the jury. Tyson maintains that control was a disputed factor and that the other four factors relevant to employee status weighed against treating Garcia as an employee. Tyson contends that the Court of Special Appeals’s decision is contrary to existing case law and that the circuit court properly determined that this case involved disputed facts that the jury should resolve.

Tyson asserts that the Court of Special Appeals misconstrued the control factor by focusing the inquiry on the workplace rather than the worker. And, Tyson maintains that the Court of Special Appeals overstated the importance of the control factor and failed to recognize that the evidence permitted the reasonable inference that it did not have the necessary control over Garcia to be considered his employer. UEF responds that the Court of Special Appeals was correct in concluding that, 13 Because the two questions presented in the petition for a writ of certiorari involve the same issue—whether the Court of Special Appeals erred in concluding that the circuit court erred in denying UEF’s motion for judgment—we consolidate the questions. - 18 - based on the level of control that Tyson had over Garcia and his work, Tyson was a co- employer, and that the circuit court erred in denying its motion for judgment. UEF contends that an employer-employee relationship exists as a matter of law where the only inference to be drawn from the evidence is that a party controls the work of another.

UEF argues that the control factor is the most important factor and that employer status can be established even if another entity hires, pays, and has the right to fire the employee. UEF asserts that, in this case, the evidence established that Tyson exercised extensive control over Garcia and his work, amounting to a constructive power to discharge, and that, even if the other four factors weighed against employer status, the Court of Special Appeals’s decision was correct. Standard of Review LE § 9-737 authorizes judicial review of the Commission’s decisions. On review in the circuit court, “the decision of the Commission is presumed to be prima facie correct” and “the party challenging the decision has the burden of proof.” LE § 9-745(b).

Pursuant to LE § 9-745(d), “[o]n a motion of any party filed with the clerk of the court in accordance with the practice in civil cases, the court shall submit to a jury any question of fact involved in the case.” Maryland Rule 2-519(a) provides, in relevant part, that “[a] party may move for judgment on any or all of the issues . . . in a jury trial at the close of all the evidence[,] stat[ing] with particularity all reasons why the motion should be granted.” In Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503 , 16 A.3d 159, 163 (2011), we explained the standard applicable to review of the grant or denial of a motion for judgment as follows: - 19 - An appellate court reviews the trial court’s decision to allow or deny judgment . . . to determine whether it was legally correct, while viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the non-moving party, and determining whether the facts and circumstances only permit one inference with regard to the issue presented. (Cleaned up). And, in Thomas v. Panco Mgmt. of Md., LLC, 423 Md. 387, 394 , 31 A.3d 583, 588 (2011), we stated: [W]hen a defendant moves for judgment based . . . upon the legal insufficiency of the plaintiff’s evidence, the trial [court] must determine if there is any evidence, no matter how slight, that is legally sufficient to generate a jury question, and if there is, the motion must be denied and the case submitted to the jury. It is only when the facts and circumstances only permit one inference with regard to the issue presented, that the issue is one of law for the court and not one of fact for the jury.

An appellate court must review the grant or denial of a motion for judgment by conducting the same analysis as the trial [court]. (Cleaned up). Law This Court has recognized that a worker can at the same time be the employee of two employers. See Whitehead, 304 Md. at 79 , 497 A.2d at 809 (“A worker may simultaneously be the employee of two employers.” (Citation omitted)); Mackall, 293 Md. at 229 , 443 A.2d at 102 (“This Court has repeatedly recognized that, under certain circumstances, a person performing a given function simultaneously may be the employee of two employers.” (Citations omitted)).

In Mackall, 293 Md. at 230 , 443 A.2d at 103 , this Court explained that we have “reiterated that the question whether an employer- employee relationship exists is one for the jury to determine.” To that end, we have established the following five factors to determine whether an employer-employee relationship exists: “(1) the power to select and hire the employee, (2) the payment of - 20 - wages, (3) the power to discharge, (4) the power to control the employee’s conduct, and (5) whether the work is part of the regular business of the employer.” Id. at 230 , 443 A.2d at 103 . We explained that the “decisive test in determining whether” an employment relationship exists “is whether the employer has the right to control and direct the employee in the performance of the work and in the manner in which the work is to be done.” Id. at 230 , 443 A.2d at 103 . “If there is evidence to support an inference that more than one individual or company controls or directs a person in the performance of a given function, the question of whether an employer-employee relationship exists is a question of fact to be determined by the jury.” Id. at 230 , 443 A.2d at 103 (citations omitted). In Whitehead, 304 Md. at 78 , 497 A.2d at 809 , this Court discussed the relationship between the factors for determining whether an employer-employee relationship exists, stating: Of the five factors, the factor of control stands out as the most important. We have said, for example, that whether the employer has the right to control and direct the employee in the performance of the work and in the manner in which the work is to be done is the decisive or controlling test.

We have also recognized, in speaking to the interrelationship of the factors, that standing alone, none of these indicia, excepting (4) the factor of control, seems controlling in the determination as to whether such a relationship exists. Thus, for our purposes, decisive, besides controlling, means conclusive, determinative, and definitive. This view is consistent with that expressed in other jurisdictions, where control has been variously described as the most vital factor, the most important factor, the most significant factor in all cases, the most stressed element, the final test, and the crucial test, when determining whether the employer/employee relationship exists. (Cleaned up).

In Whitehead, id. at 76 , 497 A.2d at 808 , we stated that, ordinarily, where evidence is disputed and differing inferences from the evidence are possible, “a jury must - 21 - determine the underlying employment issues.” By contrast, ordinarily, where evidence is uncontradicted, “a court may decide the issue as one of law.” Id. at 76 , 497 A.2d at 808 (citations omitted). Nevertheless, where the evidence is uncontradicted, “the trial court should take some pains to ensure that conflicting inferences are not possible on the presented evidence,” and “something more than conjecture of a party is necessary to establish that conflicting inferences are possible[.]” Id. at 76 , 497 A.2d at 808 (cleaned up). For a party to establish conflicting inferences, “[a]t the very least, a party must point to evidence in the case that control of a given function is vested in more than one person.” Id. at 76 , 497 A.2d at 808 (cleaned up). The factors are embodied in a pattern jury instruction on determining the existence of an employment relationship for purposes of workers’ compensation, which provides: In determining whether (________) is an Employee of (________), you should consider the following factors: (1) The selection and hiring of (________); (2) The payment of wages; (3) The power to fire (________); (4) The power of control over (________)’s conduct; (5) Whether the work is a part of the regular business of (________); (6) Whether the parties believed they were creating an employer- employee relationship; (7) Whether the work is usually done, in the environment, under the direction of an employer, or by a specialist without supervision; (8) The skill required in the occupation. - 22 - The most important factor is the power of control.

MPJI-Cv 30:15 (Employment Relationship).14 In Mackall, 293 Md. at 222-23, 231 , 443 A.2d at 99, 103 , a case in which the Commission determined that a worker was the employee of one company and the worker instituted a tort action against a second company, this Court held that there was sufficient evidence to support an inference that both companies were simultaneously the worker’s employers and that, as such, the question of whether an employer-employee relationship existed with respect to the second company was a question of fact to be determined by the jury. Zayre Corporation (“Zayre”) owned and operated a chain of retail department stores and Alden Millinery (“Alden”) leased space from Zayre for the sale of wigs and millinery 14 Similarly, the pattern jury instruction on determining generally whether an employer-employee relationship exists provides: In determining whether an employment relationship exists, five factors are considered: (1) the power to select and hire the employee; (2) the payment of wages; (3) the power of discharge; (4) the power to control the employee’s conduct; and (5) whether the work is part of the regular business of the employer. The most important factor in determining whether an employment relationship exists is whether the employer has the power to control and direct the manner of the work. MPJI-Cv 3:2 (Employer/Employee Relationship). - 23 - at one of Zayre’s stores.

See id. at 222 , 443 A.2d at 99 . The worker was the manager