August 1, 2022

Can a Temp Waiter Sue an Assigned Employer for Personal Injury? | Cup of Joe

Can A Temp Waiter Sue An Assigned Employer for Personal Injury?

Joseph D. Nohavicka

In most cases, a worker cannot sue their employer for negligence if they are injured on the job. The sole remedy is Workers’ Compensation. But what if a temp is assigned by an agency to a business and they get hurt on the job?  Don’t they work for the agency?  Should they be able to sue the business where they were injured? 

A waiter, who was working on a temp basis through an agency, slipped and fell in water on the floor while carrying a serving tray near a sink in the kitchen of Columbia University's on-campus catering hall. He sued both Columbia and the temp agency. 

The waiter's case was dismissed because he failed to show that Columbia was not his "special employer" and, therefore, Workers' Comp was his sole remedy.

In general, workers compensation benefits are the exclusive remedy of an employee against an employer for any damages sustained from injury or death arising out of and in the course of employment. The waiter's lawyer argued that the temp agency was the waiter's employer and Columbia was not. The court disagreed. 

Here is the question that must be asked when determining whether an entity is an employer for purposes of Workers' Comp: Who controls and directs the manner, details and ultimate result of the employee's work? 

In this case, the answer was Columbia. Columbia is the employer, therefore the waiter was Columbia’s special employee. 

Waiter cannot sue Columbia and must go to Workers' Comp.

Read the full case here: Berhe v Trustees of Columbia Univ.

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