The Wisconsin Court of Appeals made a decision that could impact employers who hire temporary workers. They decided that temporary workers have the right to file a suit against their temporary employer if they do not make a workers’ compensation claim.

The decision was made based off of the case of Carlos Rivera who worked for Alex Drywall. His employer provided him as a skilled temporary worker for Alpine Insulation. Alpine paid Alex Drywall for Rivera’s services and Alex Drywall paid Rivera. He was killed in a car crash while riding as a passenger in a car owned by Alpine, driven by an Alpine employee. The employee driving was found to be at fault in the accident.

His estate filed a wrongful death lawsuit against Alpine rather than filing for workers’ compensation benefits, though they had the option to. Alpine argued that they were not allowed to bring a tort action because he was an employee of Alex Drywall. The trial court agreed with that argument but upon appeal, the Wisconsin Court of Appeals sided with Rivera.

The court said that the exclusive remedy portion of the Workers’ Compensation Act doesn’t bar a temporary employee from bringing a claim against their temporary employer. They interpreted the law as one that bars a tort claim if the employee had made a claim for compensation. So if the temporary employee had not made a claim for compensation they could pursue a tort claim against the temporary employer, even if they were a “loaned employee”. The court determined that his estate could not bring a suit against Alex Drywall but was free to bring a suit against Alpine, since Alpine was not technically his employer. The court specified that their decision would not allow a temporary worker to recover twice for their injury. Allowing temporary employees the choice, they said, prevents temporary employees from filing a workers’ compensation claim with their employer and a tort suit with the third party temporary employer.

We will see if this decision is appealed to the Wisconsin Supreme Court or if it remains.

Read the court case here.