Five months into your eight-month temporary employment gig at a warehouse, several improperly stacked boxes of notebooks fall on your head, causing a headache that lasts for days, intermittent dizziness and sleep disruption. A visit to the doctor reveals that you have a concussion and you’re advised to stay off your feet for two weeks.
Who is responsible for your workers’ compensation claim?: The warehouse where you’ve been working? Or the temporary employment agency that hired you out?
Most Temp Workers Have No Idea Who Is Responsible For Their Workers Compensation Benefits
If you’re an injured temp worker, don’t be surprised if there’s a battle between the temporary employment agency that hired you and the organization that leased your services over your workers’ compensation claim. Most of the time, each will argue that the other is responsible.
The answer often boils down to questions of direction and control: from whom do you get your instructions? From whom do you receive your paychecks? Who has the right to hire and fire you? In my experience, it is usually the organization that leased your services that is responsible for the workers’ comp claim.
But not always.
Sometimes the temporary agency is considered your employer for workers’ comp purposes, particularly when you are not integrated into the leasing organization and you receive your paycheck and benefits from the temp agency. When the temp agency is your employer, not only can you receive workers’ comp from the agency but you may also be entitled to file a lawsuit for negligence against the organization at which you were temping.
You see, under New York Workers’ Compensation law, an employee is generally entitled to receive benefits when there has been an injury, regardless of fault. In exchange for this no-fault rule, employees cannot sue their employer for negligence.
The case of temporary worker is different, however, since the negligent party may not be the actual employer (the temp agency) but a third party (e.g., the warehouse, in the above scenario). The temporary worker is therefore permitted to bring a negligence claim against the organization where he or she works in addition to the workers’ compensation claim.
So, if you’re a temporary worker who has been hurt on the job, you should do three things to ensure that you are fully compensated for your injuries:
- Notify both the temporary employment agency and the organization that has leased your services about your injury in writing within 30 days of getting hurt.
- File your workers’ compensation claim with the New York Workers’ Compensation Board.
- Consult a New York workers’ compensation attorney to discuss who is actually responsible for your claim and whether you have a viable claim against a third-party. If so, you may be able to obtain compensation for expenses and bills not covered by workers’ comp as well as receive damages for pain and suffering.