Who Is My Employer?

by John Beichert

Confusion is frequent when staffing agencies are involved.

Most of us in Lehigh Valley have noticed the business development over the last few years.  The Valley has become home to behemoth distribution centers for companies including giant online retailers, supermarket leaders, and many others.  It seems like every week is greeted with the completion of or announcement for another huge warehouse.  The Lehigh Valley’s proximity to major population centers on the East Coast, as well as its easy access to major transportation arteries, make our area an ideal location for continuing this growth.  Manufacturing and food processing plants continue to thrive as well.

One of the trends in providing employees for these fast growing and large organizations has been to engage the services of staffing agencies.  In some facilities, only a small percentage of the workers are actually employed by the company itself.  Instead, a collection of staffing agencies provide the employees.  In some organizations, different agencies provide different workers depending on the job functions required.  At times, the agency will have an actual onsite office with the company.

Many employees become confused by this situation and do not comprehend who is their actual employer.  For Workers’ Compensation purposes, the identity of your actual employer is vital if you have been injured and need to file a Workers’ Compensation claim.  The question frequently asked is “are workers placed through a staffing agency covered by workers’ compensation benefits?”

The answer is almost certainly yes.  While in some isolated circumstances, a person working through an agency may be considered an independent contractor (and thus not covered under the Pennsylvania Workers’ Compensation Act), the vast majority of workers placed through an agency will be covered by the provisions of the Pennsylvania Workers’ Compensation Act.  Here in the Lehigh Valley, it is almost always true that the agency is the actual employer and accordingly provides the workers’ compensation insurance coverage.

It is essential that an injured worker understand that, because the staffing agency is the actual employer, it is incumbent upon him or her to not only report the injury to his or her direct supervisor (who frequently is an employee of the facility and not the agency) but also to report the injury to the designated contact at the agency.  Sometimes that contact is at the facility itself.  Other times, the report of injury must be made at the agency’s separate office.  Too many claims have been lost or compromised because of late or ineffective reporting.

It will be the agency that directs the medical treatment for the first ninety days of work injury medical care.  It is the agency that will provide any post-injury light duty job opportunities.  It is the agency (through its workers’ compensation insurance carrier) that will be responsible for paying indemnity benefits for lost time incurred as a result of the work injury.  Of course, it is the agency’s workers’ compensation insurance company who will pay for work injury related medical treatment.

Frequently, staffing agency employees are simply told to apply for Unemployment Compensation and use their own insurance to pay for their medical care.  An unfortunate reality is that many of the staffing agency employees do not carry individual medical coverage.  Furthermore, Unemployment Compensation benefits are limited to twenty-six weeks, are taxed and are not available to an injured worker who is not capable of performing any work at all.

As a result of the confusion concerning the identity of the employer and other similar issues, injuries suffered by temporary employees are frequently denied by the agencies.  Injured workers are directed to other benefit programs or simply discarded and replaced by the next available worker.  Therefore, it is important to have the advice of an experienced workers’ compensation attorney as soon as possible following an injury in the course and scope of employment.

Attorney John J. Beichert is the Managing Attorney for Haggerty, Goldberg, Schleifer & Kupersmith Workers’ Compensation and Social Security Departments.  In addition, he manages the firm’s Reading and Allentown offices.

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