Just imagine a person working on a construction site when the piece of equipment running nearby slips and strikes him or her, resulting in significant injuries. While this may sound like a simple case of determining who was negligent in causing the worker’s injuries, the question may instead be whether the employee was a borrowed employee at the time he or she was injured.
What is a borrowed employee and why is that important? If the court finds that the employee was a borrowed employee, it could limit the possible remedies available to the employee. He or she may also be required to get compensation through traditional workers’ compensation rather than damages through the Longshore and Harbor Workers’ Compensation Act.
Defining a Borrowed Employee
A borrowed employee is defined as someone working for his or her regular employer and who is released to temporarily work for another employer or a borrowing employer and therefore becomes the latter’s employee for a period of time.
If an injured employee is found to be a borrowed employee, the question of liability turns to the borrowing employer. The borrowing employer may be vicariously liable if the borrowing employer has assumed control over the employee’s actions and is directing him or her at the time the liability arose.
Determining Borrowed Employee/Employer Status
The following nine factors are used by district courts to determine the status of a borrowed employee during maritime law claims:
- Who has control over the work the employee is performing
- Whose work the employee is performing
- Whether an understanding, agreement, or meeting of the minds existed between the borrowing and nominal employer
- Whether the employee acquiesced in the new work arrangement
- Whether the relationship between the original employer and employee was terminated
- Who furnished the tools and place of performance for the employee
- Whether the new employment of the employee was over a substantial length of time
- Whether the borrowing or nominal employer had the right to terminate the employee
- Whether the borrowing or nominal employee was the employer paying the employee
Although more than one factor will play a role in determining the outcome of a claim, the injured employee will likely have to show that the employer from whom he or she is seeking recovery had the control to direct the performance of that employee’s work.
Longshore and Harbor Workers’ Compensation Act
When it comes to maritime accidents, the Longshore and Harbor Workers’ Compensation Act will preempt any other claims that may have been filed against the vessel owner or employer. Essentially this means that it will override traditional tort theories, such as negligence.
While the employer may be liable for the medical services and supplies of the employee, when it comes to disability and death compensation, an employer who pleads the federal Longshore and Harbor Workers’ Compensation Act may also be able to avoid damages caused by negligence if they are able to prove that the employee was covered by insurance and they had provided it for the benefit of the employee. This limitation may, in some situations, apply to a borrowed employee.
Contact an Experienced Maritime Law Attorney Today
If you have been injured and believe your accident would fall under maritime law, contact the attorneys at Kolodny Law Firm today. We understand the complexities of maritime law and will work to get you the benefits and compensation that you deserve.
Alan Kolodny is committed to representing injured clients in Texas and throughout the United States. Alan earned his B.A. from Rice University and his J.D. from Southern Methodist University.
He focuses his practice on representing plaintiffs in personal injury cases involving the following matters: maritime and offshore accidents, including those under the Jones Act; automobile and 18-wheeler truck accidents; and industrial site accidents, work-related accidents, and claims for injured railroad workers under the Federal Employers’ Liability Act.
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