Workers’ Comp and Staffing Agencies: What Is PA’s ‘Borrowed Servant’ Doctrine?
Readers of this blog know that employees who are injured at work are generally limited to compensation available to them under Pennsylvania’s Workers’ Compensation Act and cannot separately sue their employers for personal injury. But what happens when the employee is a contractual employee through an employment agency? Does the employee have an actionable personal injury lawsuit against the agency’s client?
The U.S. District Court for the Middle District of Pennsylvania recently said “no” to a forklift operator, finding that he was a “borrowed servant.”
In Solomon v. FedEx Supply Chain, a worker was a contractual employee for the employment agency Randstad North America and was assigned to work as a forklift operator and order picker at a FedEx distribution center. The staffing agreement between FedEx and Randstad stated that FedEx was responsible for training, supervising, and instructing staffing personnel, as well as maintaining a safe and legal workplace. It also provided that FedEx retained direction and control over staffing personnel as it determined in its sole discretion to be appropriate to conduct its business, including the right to accept, reject, and remove staffing personnel. The agreement also provided that Randstad was solely responsible for selecting, hiring, disciplining, reviewing, evaluating, and terminating staffing personnel, as well as paying their wages and maintaining their benefits.
The worker was assigned to a position at FedEx’s distribution center after undergoing an interview and several days of new hire training provided by FedEx. The training included classroom and hands-on training, certification tests, and training on three types of forklifts, including the type that the worker was operating at the time of his accident.
After satisfactorily completing the training, the worker reported to the distribution center for his first day of work. There, he attended a pre-shift meeting run by FedEx management personnel and received his specific shift assignment from a FedEx supervisor. As part of his shift assignment, he was directed to shadow a FedEx employee. Later during that same shift, while he was operating a standup forklift, the worker collided with a parked forklift and sustained serious leg injuries.
The worker filed a personal injury lawsuit against FedEx. FedEx sought dismissal of the suit on the grounds that it was the worker’s statutory employer and was therefore immune from suit under Pennsylvania’s Workers’ Compensation Act.
Under Pennsylvania’s “borrowed servant” doctrine, immunity from a personal injury lawsuit extends from the direct employer to another entity that has “borrowed” the employee if the latter exercises sufficient control over the employee. As the District Court noted:
The crucial test in determining whether a servant furnished by one person to another becomes the employee of the person to whom he is loaned is whether he passes under the latter’s right of control with regard not only to the work to be done but also to the manner of performing it.
Here, the District Court found that the evidence demonstrated that FedEx had the right to, and did, exercise sufficient control over the employee to be considered his statutory employer under the borrowed servant doctrine and the Workers’ Compensation Act.
Accordingly, the court dismissed the worker’s personal injury lawsuit against FedEx.
Unfortunately for the worker, his legal rights to receive compensation from FedEx for his injuries will be limited to what he can collect under Pennsylvania’s Workers’ Compensation Act.
As always, if you are injured in a work-related accident, we recommend that you consult with a workers’ compensation attorney as soon as possible to ensure that your legal rights are protected.