Most workers know that if you are injured on the job during the normal performance of your work, you are entitled to benefits through Washington State’s workers’ compensation system.
This system is run by the Washington Department of Labor & Industries (L&I), and allows for workers injured on the job to recover:
- Payment for medical care directly related to your injuries
- A portion of wages lost due to the injury
However, in exchange for these benefits, employers who join the L&I system are generally immune to personal injury lawsuits.
For instance, if you were injured because your employer failed to maintain a safe working environment, you would be barred from filing a personal injury lawsuit for additional damages. Instead, L&I would pay for your medical treatment and a portion of lost wages.
Temp Agencies and Contract Employees
However – there is one exception to this rule that covers a large number of workers in Washington State; temp agencies and contract employees.
If you are a contractor working through a temp agency, or an independent contractor, and are injured on the job, you may be able to both claim benefits under L&I and file a personal injury lawsuit.
Temp agency workers are typically assigned a worksite by the agency in coordination with the agency’s client.
For instance, if you work for a temp agency that contracts with Microsoft, you may work on the Microsoft campus in Redmond. However – that doesn’t make you a Microsoft employee. Despite working on Microsoft’s property, you are an employee of the temp agency.
Now suppose you are injured while working on Microsoft’s campus due to the company’s negligence.
Under Washington’s workers’ compensation system you can seek benefits, and normally, Microsoft would be shielded from additional personal injury claims as an employer.
However, because in this case you are an employee of the temp agency, and not a Microsoft employee, you may be able to sue Microsoft for causing your injury, in addition to filing a claim with L&I.
Who is the Real Employer?
The key question in these cases is simple: who is the real employer?
In the example above, Microsoft is not the employer. Rather, they are a third party, responsible for injuries they cause to individuals on their property.
So how do we decide who is the employer, and who is simply a third party?
There is no easy answer, but there are a couple questions we can ask to demonstrate who the employer is, such as:
- Who pays the employee?
- Who provides benefits, such as health insurance or 401k contributions?
- Who interviewed the employee; the agency or their client?
If the temp agency pays the employee, provides health insurance, and conducted all of the hiring interviews, they are probably the real employer.
But if in the example above Microsoft isn’t the employer, then what is the employee’s relationship with Microsoft, and how do we determine Microsoft’s responsibilities?
Personal injury law recognizes a sliding set of responsibilities for property owners, depending on the circumstances of the injury.
At the lowest end of this scale are cases involving trespassing. If someone trespasses onto your property illegally, the standard for actions you need to take to protect them is very low.
On the other end of the spectrum are cases involving “business invitees.” Business invitees are persons invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. If someone is a business invitee, such as a customer invited into a place of business, the property owner has a high bar of responsibility for ensuring their safety.
When temp agency employees are injured on the job, we ask the court to classify them as business invitees of the company that caused their injury.
The most recent and relevant case law for this distinction was established in Afoa vs. Port of Seattle (296 P. 3d 800 – 2013), a case taken up by the Washington State Supreme Court.
In that case, Brandon Afoa was injured at Sea-Tac Airport while driving a vehicle used to move airplanes between passenger gates. Afoa was an employee of Evergreen Aviation Ground Logistics Enterprises, Inc. (EAGLE), but sued the Port of Seattle for, among other things, failing to maintain a safe working environment.
The Court ruled that Afoa was a business invitee, not an employee of the Port of Seattle. Therefore, he could pursue personal injury claims against the Port for causing his injuries, in addition to receiving L&I benefits.
In this case, Afoa was a business invitee because he was invited onto property owned by Sea-Tac Airport for the benefit of the Port of Seattle.
The bottom line is that in many cases, contract workers and temp agency employees can take legal action against the owner of the property where they were working, in addition to filing a claim with L&I.
However, doing so depends on having a capable attorney who can hold the property owner accountable. At Park Chenaur, we have more than 15 years of experience handling personal injury cases, including cases on behalf of temp agency employees.