Generally, in the state of New York, an employee is barred from suing his
employer if he is injured while in the scope of employment. Section 11
of the Workers Compensation Law bars suits by employees against their
employers for injuries that occur as a result of the employer’s
negligence. However, an employee may have a claim against a third party
other than his employer, so long as that third party is not a co-worker.
Therefore, an employee who is injured by a third party, such as an independent
contractor, while working at his employer’s place of business, may
sue the third party for any injuries the employee sustained as a result
of the third party’s negligent act.
In the aforementioned situation, the employee will have two avenues for
recovery. The first avenue of recovery being compensation under the New
York Worker’s Compensation Law. The second avenue of recovery being,
the recovery from the negligent third party.
The complicated scenario occurs when an employee is employed by a temporary
employment agency, commonly known as a staffing agency. The courts have
developed what is called the Special Employee Doctrine for such situations.
The doctrine in pertinent part provides that an employee may be barred
from instituting a claim against both the staffing agency and the third
party employer for which the employee is temporarily employed.
Several factors are considered in determining whether an employee is to
be considered a special employee, such as;
I. Whether the employee is under the direction and control of the employer.
II. Which entity submits paychecks to the employee.
III. Whether the employee acquired and/or received training from the employer.
IV. Whether the employee receives direction and control from the staffing agency.
V. Which entity pays benefits and/or provides workers compensation to the employee.
VI. Who has the right to discharge the employee.
While no single factor is dispositive, the courts rely heavily on the factor
analyzing the degree of control the employer had over the employee. For
example, if the staffing agency had no direction and/or control over the
employee and the third party employer had complete direction and control
over the employee’s work product and scheduling, then the courts
are likely to rule that the employee is a special employee.
The purpose of the Special Employee Doctrine was to enable all employers,
even third party employers, protection from being sued by employees even
if the temporary employee is injured while working for the third party.
Unfortunately, if an employee is considered to be a special employee his
only means of monetary compensation is often limited to simply compensation
under section 11 of the Workers Compensation Law and any further damages
sustained or suffered by the employee are not recoverable.
Therefore, if you are being employed through a staffing agency, then you
should require that the staffing agency maintain some degree of direction
and control over the your work product, scheduling and/or training. Otherwise,
both the staffing agency and any number of third party employers that
you are working for will be afforded protection under Section 11 of the
Worker’s Compensation Law, barring you from suing any of your employers,
regardless of their degree of negligence.
At the law firm of Mainetti, Mainetti & O'Connor we know workers
compensation law, and exhaust every avenue of recovery to get our clients
the compensation they deserve.