Clifton Smoot featured in July’s edition of Organized Labor’s Ask The Expert Column

I don’t know if either of the two companies has workers’ compensation insurance. Can I bring a civil suit against the staffing agency, against the worksite employer, both, or neither?

Answer:

When a staffing or “temp” agency hires you and sends you to work for another company, and both entities retain control over you, this is an arrangement called “dual employment.” In the eyes of the law, both companies are your employer. The agency is known as the “general” or “regular” employer, and the employer to whom you were assigned is known as the “special” employer.

Under the Labor Code, the general and special employers cannot be sued in civil court for your injury if they had previously arranged for you to be covered by workers’ compensation insurance. (Cal. Labor Code. §3602(d).) That means that, even before you began work, the two companies should have agreed how your workers’ compensation insurance would be provided. For instance, they should have decided which company would purchase the policy, what insurance company would provide coverage, etc. Of course, they should have actually obtained the workers’ compensation insurance ahead of time and not after your injury already occurred. If your two employers did all this, then you cannot bring a claim against them in civil court-you can only bring a workers’ compensation claim against them in administrative court.

So what should you do? Immediately report the injury to both employers, and file a workers’ compensation claim. You should consult with a workers’ compensation attorney to make sure you receive fair treatment and adequate benefits. You should also consult with an experienced civil personal injury attorney. The attorneys can find out if your “dual” employers had arranged for you to be covered by workers’ compensation insurance. If that coverage was not in place at the time of your injury, then you may be able to bring a civil suit against one or both of your employers.