You Be the Judge

Can Injured Temp Sue Second Employer for Negligence?

An employer seeks immunity from tort liability after a temporary employee blames his injury on the company's negligence.
By: | March 27, 2015

An employee of Staffmark, a temporary employment agency, was assigned to work in the warehouse of Americold Logistics. There was no written employment contract between the worker and Americold. While driving a forklift, the employee suffered a severe spinal injury. Staffmark accepted the employee’s workers’ compensation claim and paid appropriate benefits.


The employee also sued Americold for negligence. Americold sought to dismiss the lawsuit, contending that as the employee’s special employer, it was immune from tort liability. The trial court suspended action on the negligence claim until the Workers’ Compensation Commission determined whether there was an employer-employee relationship between the worker and Americold.

Before the administrative law judge, Americold’s general manager testified that when Staffmark sent workers to Americold, “they were our associates” to be directed, disciplined, or discharged by Americold, and that Staffmark’s role at that point was “just to hand them a paycheck.” The worker testified that he didn’t believe he was Americold’s employee and that Americold disavowed the existence of an implied employment contract until it was sued for negligence.

The ALJ determined that there was an implied employment contract between the employee and Americold, that the work performed at the time of the injury was that of Americold, and that Americold paid the employee’s wages and controlled every aspect of his work. The ALJ concluded that Americold was a special employer and that the worker was a temporary employee of Americold’s. Thus, under the dual-employment doctrine, Americold was immune from tort liability. The commission affirmed and adopted the ALJ’s decision.

The employee appealed, arguing that Americold wasn’t his employer because there was no implied employment contract.

[poll id=”157″]

How the court ruled:

A is incorrect. The court explicitly stated that the fact that the implied contract was initiated through a temporary employment agency didn’t negate the fact of the employee’s dual employment.

C is incorrect. Americold’s initial denial that an implied employment contract existed didn’t impact the determination that such a contract was present.


B is correct. In Randolph v. Staffmark, et al., No. CV-14-815 (Ark. Ct. App. 02/25/15), the Arkansas Court of Appeals held that substantial evidence supported the commission’s determination that an implied employment contract existed between the employee and Americold. The court explained that an implied contract is shown through the parties’ general course of dealings indicating an intent to make a contract. Here, the court observed, both parties operated on the belief that the employee would gain full-time employee benefits after logging a sufficient number of hours of work. Additionally, the employee provided work to Americold and Americold treated the employee as any other worker and paid for his services. These facts supported a finding that an implied contract existed and that a dual-employment scenario was in place.

Editor’s note: This feature is not intended as instructional material or to replace legal advice.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

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