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Jonathan Rosenfeld

August 7, 2020

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Workers' Compensation for Temporary WorkersCompanies will hire temporary workers in uncertain economic times. There are substantial costs in bringing on a worker on a full-time basis.

Companies will need to pay more in worker benefits, so it is more expensive to hire a permanent worker. Temporary workers may earn approximately 40% less than permanent workers.

Why a Host Company Hires a Temp Worker

Temporary workers can do construction and other heavy work at a job site. They could also do light-duty work in an office. Either way, they are at risk of a workplace injury, even if it means contracting COVID-19 on the job.

They may even suffer fatal injuries on the job. There are many different ways that a temp worker can suffer a permanent disability or temporary partial disability.

Moreover, permanent workers have certain rights regarding being laid off. They must receive notifications. The business may need to provide severance benefits when an employee is laid off.

In many instances, it is easier and less expensive to hire temporary workers. They do not need to be specifically let go if their services are no longer required. The company would either let their employment term expire or tell the employees that the job has ended.

In uncertain economic times like these, one can expect the number of temporary workers in the economy to grow as businesses have no idea what to expect in several months.

Temporary workers are especially helpful when a company needs employees but has no idea of the duration of their needs.

The temporary worker industry in the United States is booming. Even before the most recent recession caused by the pandemic, U.S. temp agencies supplied over three million workers in 2018.

Most of these temporary workers jobs were in lower-paying fields that required some physical labor.

Safety Concerns: The Difference Between Permanent and Temporary Employee

Temporary workers are more likely than permanent employees to be injured on the job. In fact, of the 5,190 fatalities on the job in 2016, over 16% of them involved non-permanent employees.

Temporary employees are more likely to contract an occupational disease.

There have been numerous media reports about temporary workers killed on the job in gruesome and devastating accidents. For example, a temporary Florida worker was crushed in a hummus grinding machine on the job.

A subsequent OSHA investigation found that the company did not provide him with adequate job training.

There are several reasons why temporary workers are more at risk. First, temporary workers may not be as experienced as permanent workers. Second, despite OSHA regulations requiring job training, temporary workers may not receive the same amount of training.

Companies may not want to invest as much in a temporary employee since they will not be with the company for the long term.

Third, temporary employees are usually viewed as inferior to permanent employees, so companies do not invest as much in their protection since they view them as expendable.

OSHA Protections for Temporary Workers

In general, the temporary work field is subject to abuse, notwithstanding legal protections that are in place. First, there are federal guidelines that are in place that helps temps. OSHA rules apply to temporary workers the same way that they do to permanent employees.

OSHA launched a temporary worker initiative in 2013 in recognition that it noticed that rules were not being followed regarding temporary employees. It is up to the host employer and the staffing agency to work among themselves to ensure that regulations are complied with and followed.

Both of these companies may be held responsible in an OSHA enforcement action.

Here are some of the relevant OSHA rules that exist to protect temporary workers from work-related injury:

  • Workers have a legal right to be provided with a safe work environment free from workplace hazards, including disease control.
  • Temporary employees, like regular workers, must be given adequate personal protective equipment to safeguard them.
  • Temporary employees must receive proper training, which includes specific safety information.

In its safety bulletins aimed at temporary worker conditions, OSHA repeatedly says, “Temporary workers are entitled to the same protections under the Occupational Safety and Health Act of 1970 (the OSH Act) as all other covered workers.”

Protections in the State of Illinois for Temp Workers

Most states in the United States do not have many, if any, additional laws to help temporary workers. This is where the State of Illinois has become a leader among states. It is one of the few states to have dedicated legislation aimed at strengthening legal protections for temps.

In 2017, the Illinois Legislature passed the Responsible Jobs Creation Act (HB0690), which regulates the temp worker industry in the state. This law amends the Day and Temporary Labor Services Act, found at 820 ILCS 75.

These laws require compliance with OSHA regulations for temporary workers in Illinois.

Before the passage of this legislation, the Illinois House held hearings about some of the abuses in the temporary worker industry. One worker detailed how they were forced to work for three months after suffering an injury to her wrist and still feel pain in that wrist four years later.

Illinois staffing agencies have been rife with labor and safety abuses. Temporary staffing in the state is a low-margin business, and companies cut corners routinely to boost their profits.

Combined with the host companies not feeling the need to spend for these workers’ safety, it places them in danger.

You are probably wondering where this leaves you as an injured temp worker. Legally, your employment relationship is with the staffing company that hired you. Temporary workers have the same workers’ compensation protections under Illinois law as any other worker.

As an injured employee, you cannot file a workers’ compensation claim against the host employer on whose job site you have worked.

While you have the safety protections of OSHA regulations, you do not have a legal relationship with this company that would allow you to file a workers’ compensation claim against them.

Beyond a workers’ compensation claim, you could not sue the borrowing company in a negligence lawsuit. This same rule applies to permanent employees who are not allowed to sue their employer for negligence, assuming that they have workers’ compensation insurance.

Your workers’ compensation benefits include medical treatment, other medical costs, and lost earnings to compensate you for your average weekly wage.

This was exactly what an Illinois court held in the case of Terrance Falge v. Lindoo Installations Inc., 2017 Ill. App. 2d 160242 (Ill. App. Ct. 2017). The temporary worker had his finger amputated when it was trapped between a forklift and a bundle of shelving at a job site. He sued the borrowing employer for negligence.

However, the court looked at several factors in deciding that his relationship with the borrowed employer should be viewed as the same as that of a standard employer/employee relationship regarding workers’ compensation being the exclusive remedy.

Specifically, what was important to the appeals court was that the plaintiff worked the same hours as the regular employees and took direction from the borrowing company’s foreman instead of the staffing agency.

Under Illinois workers’ compensation law, the injured worker could not sue the borrowing company for negligence.

As an injured employee, you should seek legal advice on whether you have a compensable claim. A Chicago Worker’s Compensation Lawyer at Rosenfeld Injury Lawyers represents injured temp workers across Cook County, Dekalb County, and the entire State of Illinois.

Call us for further information.


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