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To avoid negligence liability, set strict control rules for contracted labor

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in Employee Benefits Program,Human Resources

Employees who are hurt at work can collect workers’ compensation but generally can’t sue their employers for negligence. The workers’ compensation law makes employers immune from such additional lawsuits. But what if you contract with another company to provide on-site labor and someone gets hurt? Can that worker sue you directly for negligence?

Not if you are careful in how you manage the work. The more day-to-day control you exert over the job, the more likely an Ohio court will consider the worker a “dual employee” and bar him from suing you for negligence. He’ll have to be satisfied with workers’ comp—usually filed through his primary employer.

Recent case:
Mark Wolf and his wife sued Big Lots for negligence and loss of consortium after Wolf was hurt while working at a Big Lots facility. Wolf was a yard switcher employed and paid by Penske Logistics but assigned to the Big Lots location. He spent his entire workday within the Big Lots facility, moving trailers at the direction of Big Lots personnel.

When he was hurt, he collected workers’ compensation benefits through Penske Logistics. Big Lots argued that Wolf couldn’t also sue for negligence because Big Lots was also his employer.

The Court of Appeals of Ohio agreed. It said that an employee assigned to a customer—with the understanding that the customer has the right to control the manner or means of performing the work—is also the customer’s employee for workers’ compensation purposes. And that means workers’ compensation is the only payment the employee is entitled to. (Wolf v. Big Lots Stores, No. 07AP-511, Court of Appeals of Ohio, 10th Appellate District, 2008)

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