Workers Compensation and Temp Agency Employees | Injured on the Job

Submitted by New Jersey Workers Comp Lawyer, Jeffrey Hark

DANIEL HERNANDEZ, v. PORT LOGISTICS, a corporation  Submitted April 8, 2014 – Decided April 30, 2014

The issue in this case is the relationship between a temp worker hired by a temp agency working at a location assigned to him by the employer.  The temp worker is considered under the law as a ‘special employee’.  That worker has two employers, the temp agency and the company where he is performing work.  The court ruled here the temp worker can not sue the employer where he is assigned under the current case law.  The court ruled that:

“The WCA “seeks to protect injured workers from becoming mired in costly and protracted litigation that could delay payment of their claims.” Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J.      397, 411 (2003) (Verniero, J., concurring). “[T]he quid pro quo . . . [i]s that employees . . . receive assurance of relatively swift and certain compensation payments, but . . . relinquish their rights to        pursue a potentially larger recovery in a common-law action.” Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985); and see Walrond v. Cnty. of Somerset, 382 N.J. Super. 227, 234 (App. Div. 2006) (“In exchange for receiving workers’ compensation benefits, which are awarded without regard to fault, the employee surrenders common law tort remedies against his or her employer and co-employees, except for intentional wrongs.”) (citing N.J.S.A. 34:15-8; Ramos v. Browning Ferris Indus., 103 N.J. 177, 183 (1986)).

Our jurisprudence “allows an employee, for the purpose of workers’ compensation[,] to have two employers, both of whom may be liable in compensation. However, recovery against one bars the employee from maintaining a tort action against the other for the same injury.” Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (1988) (citing Blessing v. T. Shriver and Co., 94 N.J. Super. 426, 429-30 (App. Div. 1967)). Whether a common law tort action is precluded depends on a determination as to whether the “borrower” of the employee is a “special employer.” Blessing, supra, 94 N.J. Super. at 430.

The special employer/employee relationship is determined by consideration of the following factors: whether:

1. the employee had made a contract of hire, express or implied, with the employer;
2. the employee is essentially doing the work of the employer;
3. the employer has “the right to control the details of the work”;
4. the employer pays the borrowed employee’s salary; and
5. the employer has the power to hire, fire, or recall the employee.

Walrond, supra, 382 N.J. Super. 235-36 (citations omitted). In weighing these factors, no single factor is “necessarily dispositive,” and it is not necessary that all five be satisfied. Id. at 236.

In other words, the employee, who is controlled by the temp agency and the employer where s/he is assigned, can not file a third party claim when they are injured at the assigned job site.  The only remedy is the workers compensation statute.  However, if an employee is injured do to the negligence of the property owner, or another third party who is responsible for the job site or the location or mechanism of the accident or injury who is not the employer, the employee can always bring a claim against that entity.