Wisconsin: Temporary Workers Can Now Sue Employers for Workplace Injuries

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January 26, 2018

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In In Re the Estate of Carolos Esterley Cerrato Rivera v. West Bend Mutual Insurance Company, the Wisconsin Court of Appeals recently stated that a temporary worker could opt out of making a workers’ compensation claim under the Wisconsin Workers’ Compensation Act (the “Act), and bring a tort claim against the employer instead.

Because the Act states that a temporary worker “who makes a claim for compensation” cannot bring a tort lawsuit against an employer, the court stated that the Act does not prohibit an employee who opts out of making a claim for compensation from pursuing a lawsuit instead. As a result, temporary workers who have been injured as a result of work may now have greater ability to bring lawsuits against employers than regular employees.

There, a temporary employee was travelling from one worksite to another, when he was killed in an accident in the employer’s vehicle.  The employee’s estate chose to sue the employer and its insurance carrier for wrongful death, rather than make a claim for death benefits under the Act.

It is anticipated that the Court of Appeals decision will be appealed to the state supreme court, or that the state legislature will enact a statutory fix to language of the Act.  Until then, Wisconsin employers should be aware that temporary employees who suffer workplace injuries may be a source of greater exposure.

Action Items

  1. Review insurance coverage for litigation claims from temporary workers.
  2. Review safety procedures to minimize the potential for worker injury.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

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