When you think of employees, you probably think there is only one type of employee. However, when it comes to the definition of an employee, there is not just one type. For example, borrowed employees are employed by one employer but released to another employer for temporary work. If an employee is a borrowed employee and is injured on the job, which employer is liable for damages? Is it the regular employer because they let their employee work for another employer, or is it the borrowing employer because that is where the employee was injured?
Factors Determining Borrowed Employee Status
When it comes to determining whether a person is actually a borrowed employee of another employer, there are nine factors that are considered:
- Who has actual control of the employee and the work he or she is doing, beyond the suggested details of the work or cooperation?
- Which employer’s work is being completed by the employee?
- Was there an understanding, agreement, or meeting of the minds between the regular and borrowing employers?
- Was the employee forced to settle into the new work environment reluctantly?
- Has the original employer terminated their relationship with the employee?
- Which employer is providing a place of performance and tools for the employee?
- Does the regular or borrowing employer have the right to discharge the employee?
- Which employer has the obligation to pay the employee?
Although one single factor will not control the outcome when an employee is injured, the injured employee will have to prove which employer is responsible for compensating the employee.
Longshore and Harbor Workers’ Compensation Act
When a maritime accident occurs, the Longshore and Harbor Workers’ Compensation Act will preempt all other claims against the vessel owner or employer. This means it will override traditional theories of negligence. While all employers are liable for the medical treatment, disability compensation, and death benefits for their employees, an employer who pleads under the LHWCA may be able to keep from being held liable for damages that were the result of their negligence if they can prove that they have insurance coverage and the employer had provided this benefit for the employee. This limitation may include employees that are borrowed, as well. Even if the LHWCA applies to an employer and their borrowed employee, the employer may still be liable for compensation to their injured employee.
Contact an Experienced Maritime Law Attorney TodayIf you have been injured in an offshore accident, the attorneys at Kolodny Law Firm understand the various traps of the LHWCA and The Jones Act that can keep you from getting the compensation that you deserve. Having an attorney who can help you navigate your claim will ensure that you get the compensation that you are entitled to. Let us help you get the upper hand in your case because you know that your employer is working with an attorney to keep them from paying any more compensation than is absolutely necessary. Contact us today to schedule a consultation. We are ready to step in and advocate for your rights.