On February 8, 2018, we discussed the Wisconsin Appellate Court’s decision in In Re the Estate of Carolos Esterley Cerrato Rivera v. West Bend Mutual Insurance Company, No. 2017AP142, which opened the door to civil lawsuits in tort for personal injuries suffered by employees of temporary staffing agencies against their borrowing employer. As noted in the February 8th blog article, the Wisconsin State Assembly had already drafted a bill to close this door, which has now been passed and signed into law by Governor Scott Walker on February 28, 2018.
Wisconsin Statute Chapter 102 makes up our state’s Workers’ Compensation Act (“Act”). For a background on the history and purpose of the Act, please see our original blog article discussing the Rivera case. As a result of a compromise between the interests of employees and employers and absent a few narrow exceptions, when employees are injured while in the course and scope of their employment, the injured employees exclusive remedy to receive compensation from the employer is through the provisions of the Act.
Through both court decisions and amendments to the Act, a borrowing or temporary employer of an employee from a temporary staffing agency was deemed to be shielded by the exclusive remedy provision of the Act and was treated no differently than an employee’s direct employer.
The Appellate Court in Rivera, however, held that this was no longer the case based on the plain language of the Act. Specifically, section 102.29(6)(b)(1) of the Wisconsin Statutes stated, “no employee of a temporary help agency who makes a claim for compensation” may make a claim in tort against any employer who compensates the temporary help agency for the employer’s services. As a result, the Appellate Court ruled an injured temporary employee had the choice whether to make a claim under Wisconsin’s Workers’ Compensation Act or to forgo such a claim and sue his or her temporary employer in circuit court.
Pursuant to 2017 Wisconsin Act 139, section 102.29(6)(b)(1), as well as other similar statutory language, was amended to now read, “no employee of a temporary help agency who has the right to make a claim for compensation” may make a claim in tort against any employer who compensates the temporary help agency for the employer’s services. In other words, temporary employees no longer have a choice of remedies and the Act is the only avenue they have to receive compensation for injuries suffered on the job.
Unfortunately, 2017 Wisconsin Act 139 “first applies to claims for worker’s compensation made or civil tort claims filed on the effective date” of the amendment, which was March 1, 2018. Therefore, the amendment will not apply to any civil tort actions already filed and in suit.
As always, McCarty Law’s Employment and Labor Law attorneys stand ready to assist you and answer any questions you may have as a result of this change.
Brian T. Flood
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