WHO IS YOUR EMPLOYER FOR WORKERS’ COMPENSATION BENEFITS

In the current labor market, many employees are placed in employment through temporary agencies. There are many agencies in the local market including Labor Ready, Inc., and Manpower. If an employee is injured on the job that they have been placed into by a temporary agency, a question arises as to who is their employer. A recent Pennsylvania Superior Court decision was issued explaining this relationship.

In Black v. Labor Ready, Inc., et al., the Pennsylvania Superior Court made a determination that a temporary agency was the employer of an injured worker who had been placed to work at Williamsport Steel Container, Inc., where she was injured. The Plaintiff was injured when she was working on a punch press machine in the factory of Williamsport Steel Container, Inc., when the machine descended on the Plaintiff’s hand, amputating it. The Plaintiff filed a workers’ compensation claim against both Labor Ready, Inc., the temporary agency, and also Williamsport Steel Container, Inc.. The matter was assigned to a workers’ compensation judge for disposition. The Defendant, Williamsport Steel Container, Inc., filed an answer to the Plaintiff’s petition alleging that it was not her employer and, rather, that Labor Ready, Inc., was the Plaintiff’s employer. The workers’ compensation judge decided that the temporary agency was, in fact, the Plaintiff’s employer. Subsequently, the Plaintiff filed a civil law suit against Williamsport Steel Container, Inc., alleging that she was injured due to their negligence in the maintenance of the punch press machine. In response to that complaint, Williamsport Steel Container, Inc., changed its position and filed a Motion for Summary Judgment attempting to dismiss the Plaintiff’s claim. In the Motion, Williamsport Steel argued that it was the Plaintiff’s employer and as such she was barred from pursuing any civil law suit against it, because her exclusive remedy was the Workers’ Compensation Act.

The workers’ compensation law and the law of the Commonwealth of Pennsylvania clearly states that:
Where an employee’s injury is compensable under the Workers’ Compensation Act, the compensation provided by the statute is the employee’s exclusive remedy against his or her employer. Thus, an injured employee cannot maintain a tort action against his or her employer if the injury is compensable under the provisions of the Act.

Albright v. Fagan, 671 A.2d 760 762 (Pa. Super. 1996).

The Pennsylvania Superior Court then looked into the apparent inconsistent positions that Williamsport Steel had taken in this particular situation. The Pennsylvania Supreme Court has specifically held that as a general rule, a party to an action is estopped from assuming a position inconsistent with his or her assertion in a previous action, if his or her contention was successfully maintained. In re, adoption of S.A.J., 575 Pa. 624, 631, 838 A.2d 616, 620 (2003).

In Black, the Superior Court specifically held that an employer, in this matter Williamsport Steel Container, Inc., could not maintain an inconsistent position. Thus, its previous answer in the workers’ compensation claim, specifically denying the Plaintiff was an employee, barred Williamsport Steel from raising the contention that she was their employee in the civil lawsuit. As such, the Plaintiff was permitted to pursue a civil action against the business where she was placed by the temporary agency. This decision is important, as it potentially expands the rights of injured parties to seek redress for their injuries, and more clearly define the employer-employee relationship in situations involving temporary agencies.
Original site:  http://www.law-aca.com

TAKE AWAY:  Three things, as an employer, to keep in mind when working with a staffing agency:

1) Make sure that the contract you are signing with the staffing agency specifically addresses who is responsible for workers' compensation.  Ideally, you should expect and demand wording to the effect that "staffing agency is responsible for managing and paying workers' compensation claims arising from the client work place."

2) Make sure the staffing agency has--in either its policies and procedures or its employee handbook--a statement regarding the co-employment nature of the placement and that workers' compensation is the sole responsibility of the staffing agency.   The staffing agency should want to comply with both points one and two as it should protect them from civil lawsuits as described in Black.  Points one and two also provide some protection in front of a workers' comp judge, as in the case of the first suit referenced in Black.

3) If you do find yourself faced with the circumstances described in the workers' comp case, consult your attorney (I am not an attorney and should not be considered a substitute).  Avoid a defense in which you claim to not be the employer.  Instead, defend yourself that you are a "co-employer" but that the staffing agency is ultimately responsible for workers' comp claims (and then present your handy-dandy contract referenced above).  The co-employment status should present significant protection against the subsequent civil lawsuit.

Can an employer be sued for commuting accidents?

Apparently, yes.  If you, as employer, are aware that an employee is ill or impaired at work, particularly due to something at work (exposure to chemical, long overtime hours, etc.), you could be found liable for any accidents they cause on the way home!

Typically, an employer is not liable for its employee's actions during their typical trip to and from work.  But be careful with this commonly held "rule," as there can be exceptions. 

Recent Case:  Bussard v. Minimed Inc.

On March 22, 2000, Minimed hired a pest control company to spray pesticide overnight to eliminate fleas at respondent's facility. Around 7:00 a.m. the next day, Minimed clerical employee Irma Hernandez arrived for work. She noticed a funny smell similar to "Raid." By 10 o'clock, she felt ill, with a headache, nausea, and tightness in her chest. At noon, she told two supervisors she did not feel well enough to continue working and wanted to go home. One supervisor offered to send her to the company doctor, but Hernandez declined the offer, while another supervisor asked whether she felt well enough to drive home, and she said yes. (Eventually, nine workers went home early feeling ill and 22 employees sought medical care either that day or later for their exposure to the pesticide.)

Hernandez drove home shortly after noon. While in route, she rear ended appellant Barbara Bussard, who was stopped at a red light. Hernandez told the police officer who responded to the accident scene that she had felt dizzy and lightheaded before the accident.

Bussard sued Hernandez and Minimed alleging a single cause of action for negligence for her personal injuries and property damage. She claimed Minimed was vicariously liable as Hernandez's employer under the doctrine of respondeat superior because Hernandez was acting within the course and scope of her employment when she was driving home ill from pesticide exposure.

Minimed moved for summary judgment. It argued the "going-and-coming" rule meant Hernandez was not within the course and scope of her employment during her commute home. Accordingly, it should not be held vicariously liable under respondeat superior.

The court agreed. It noted the pesticide had not incapacitated Hernandez to the point of rendering her irrational. Thus, her exposure to it did not justify disregarding the going-and-coming rule to make respondent vicariously liable for her as she drove home sick. This appeal followed.

Upon appeal, this summary judgment was reversed and the case permitted to go to trial.

The court, after appeal, then ruled  that despite the traditional “going-and-coming” rule shielding employer liability for an employee’s actions during his or her commute, where an employee’s job contributes to an accident, and such accident is foreseeable as a result of the circumstances, any resulting losses can be fairly attributable to employer’s business.

When  an employee endangers others with a risk arising from or related to work (“in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business”).

Consequently, Hernandez was essentially an “instrumentality of danger” after suffering pesticide exposure at work, and the fact that she may not be fit to drive was a foreseeable consequence of the use of the pesticide. Defendant is vicariously liable here, regardless of whether Defendant bore any responsibility for Hernandez’s exposure and subsequent negligent driving, and the fact that Defendant asked Hernandez whether she was fit to drive does not shield it from liability. Just like in cases where an employer is liable for actions of a drunken employee, regardless of whether the employer is responsible for the employee’s drinking

Take Away

Pay attention to any illness or injury complaints that could be related to work.  Be proactive. Provide transportation to medical care or home. Do the same in other cases where driving might be impaired: after a particularly long late-night day due to overtime, or where alcohol has been served.  Keep this ruling in mind when an employee has failed a drug screen.  Going the extra mile and calling a cap or emergency contact could save you down the road. 

After a bogus jobseeker used an interview to sexually assault a staffing agency's manager...

CLEVELAND (CN) - After a bogus jobseeker used an interview to sexually assault a staffing agency's manager, the company told her not to file a worker's comp claim because "it was trying to lower its premiums," the former manager claims in court. A.M. sued Shamrock Staffing, of Bedford, in Cuyahoga County Court. She says she worked for Shamrock from 2010 to 2012, first as a receptionist, then as office manager.

Full Story at Courthouse News Service