What Do You Think: Could Temp Pinned by Mechanical Arm Sue Assigned Employer?

Wilkes-Barre, PA (WorkersCompensation.com) -- Employers with workers’ compensation coverage are generally immune to negligence lawsuits for work-related injuries. But what happens if the worker is hired by and paid by an employment agency, but sent to work at another company’s facilities?

A recent Pennsylvania case examined whether such a worker would be able to sue the company, even though he is not technically the agency’s employee. The worker in that case went to a temporary employment agency. The agency told him to report to an architectural products company early the next working day.

Once at the company, a supervisor from the company explained the worker’s job duties, including when and how he was to perform them. His main job was to inspect bricks as they came out of a mold.

The worker was paid by the employment agency, not by the company. Once or twice a year, agency representatives were on the company’s premises for a tour, but these tours were essentially sales visits.

At one point while doing his job, the worker was pinned against a barrier by a mechanical arm and severely injured. He sued the company for negligence. He argued that the company was not immune to his negligence claim because he was not its employee. He also testified that he believed he was the agency’s employee.

The court explained that employers who secure workers' compensation coverage for their employees are immune to tort liability with respect to work-related injuries.

Under the "borrowed employee" or "borrowed servant” doctrine, a servant who is loaned by his master to a third party is regarded as the servant of that third party while under that third party's direction and control. The "borrowing employer" is the worker’s employer for purposes of workers’ compensation immunity.

The test for determining whether a servant furnished by one person to another becomes the employee of the person to whom he is loaned is whether he passes under the latter's right of control with regard to:

1. The work to be done; and
2. The manner in which the work is to be performed

Other factors which may be relevant include the right to select and discharge the employee and the skill or expertise required for the performance of the work. The payment of wages may be considered but is not a determinative factor.

Was the worker an employee of the architectural products company?
A. No. The company didn’t pay his salary or hire him.
B. Yes. The company directed him as to what to do on the job and how to do it.

If you selected B, you agreed with the court in Mason v. Northeast Architectural Products, No. 735 MDA 2023 (Pa. Super. Ct. 12/21/23), which held that the worker was the employee of the architectural company for purposes of workers’ compensation immunity.

The court noted that the company had the right to control the worker’s work and the manner in which he performed it. There was nothing indicating that the agency did anything other than tell him to show up at the company at a particular time. Nor did anyone from the agency have supervisory authority at the company.

“While it is undisputed that representatives of [the agency] . . . visited [the company’s] facilities, they did so once or twice a year and it was more in the nature of a ‘sales call,’” the court wrote.

Further, although it was true that the agency, not the company, paid his salary, that factor wasn’t determinative. Nor was it particularly relevant that the worker himself, according to his testimony, believed he was an employee of the agency.

The court held that the worker was the company’s borrowed employee. Therefore, the company was immune to his negligence lawsuit.

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