What Rights Do Temporary Workers Have After Being Injured at Work?

Workplace injuries are an unfortunate risk in many industries, leaving injured workers needing medical treatment and time off work to recover. But where do temporary workers stand? Can temporary workers file an injury claim when they’re hurt on the job?

This blog post explored temporary workers’ rights, how workers’ compensation works, and when temporary employees might be entitled to recover compensation via a personal injury claim.

Understanding Workers’ Compensation in Texas

Workers’ compensation (or workers’ comp) is a form of insurance that covers medical expenses and a portion of lost wages for employees who are hurt at work. Texas is the only state in the U.S. to not require private employers to have this form of insurance, though many choose to take out a policy as it protects them against being held civilly liable if they are negligent and cause an employee’s injury.

Employers that opt not to take out workers’ compensation insurance are known as non-subscribers, and whether or not an employer has workers’ comp can impact your entitlement to compensation.

The Difference Between Workers’ Compensation and a Personal Injury Claim

Both workers’ comp insurance and a personal injury claim compensate injury victims, but there are multiple differences.

• If an employer has workers’ compensation insurance, workers can receive compensation if they are hurt at work, regardless of fault. Employees do not need to prove their employer was negligent or reckless — only that the accident occurred on the premises or while they were otherwise on duty.
• It is easier to meet the criteria for a workers’ compensation claim because employees need only prove the accident occurred on the job. However, there are restrictions on what compensation workers can receive. Employees can recover the cost of their medical treatment and a portion of their lost wages. They are not entitled to additional benefits.
• In a personal injury claim, employees can recover significant compensation. They are entitled to the cost of their past and future medical bills and other expenses related to their injury, plus their total lost wages and future lost income and earning potential (for example, if their injury prevents them from doing specific duties again, a worker must move into another role or seek alternative employment altogether, or they are not eligible for a promotion they otherwise would have achieved because of their injury). A personal injury claim also provides non-economic damages, such as pain and suffering, loss of enjoyment, and mental anguish. These damages compensate a victim for the long-term impact of their injury on their life and can convert a moderate settlement into a life-changing amount.
• However, with the potential for more compensation comes a much higher burden of proof. It is not enough for a worker to prove the accident happened on the job; they must prove negligence.
• If an employer has workers’ compensation insurance, an injured worker cannot file a personal injury claim against them. However, if a third party was negligent — such as a manufacturer that sold defective equipment or machinery — a worker can recover a workers’ compensation payout from their employer and pursue a personal injury claim against the negligent third party to recover additional damages.

Are Temporary Workers Entitled to Workers’ Compensation?

Temporary workers, or temps, are typically employed by staffing agencies but work at the premises of and under the supervision of a host employer.

Whether a temporary worker is covered by workers’ compensation insurance in Texas comes down to the arrangement between the staffing agency, the worker, and the host employer.

• Staffing agency coverage: Most staffing agencies provide workers’ compensation insurance. If a temporary worker is injured at work, they can claim workers’ compensation benefits through the staffing agency that hired them rather than with the host employer.
• Host employer coverage: If a host employer has workers’ compensation insurance, temps might be covered by the policy depending on the contractual agreement between the staffing agency and the host employer.

If you’re injured at work as a temp, your first step is to speak to your host employer and staffing agency to determine 1) if they have workers’ compensation insurance, and 2) whether you should pursue workers’ comp benefits from the host employer or agency. This arrangement should also be clarified in the contract between the staffing agency and the host employer.

Can Temporary Workers File a Personal Injury Claim When Hurt on the Job?

When it comes to filing a personal injury claim, temporary workers possess the same rights as full-time employees hired directly by an employer. Whether or not an injured temp worker is entitled to recover compensation via a personal injury claim depends on how the accident happened, who is liable, and whether or not the business has workers’ comp insurance.

• If the host employer is negligent and a non-subscriber to workers’ comp insurance, a temporary worker can file a personal injury lawsuit against the employer.
• If another person or party — such as an equipment manufacturer or other contractor — is negligent, a temporary worker can pursue compensation from that third party, regardless of whether or not the host employer has workers’ compensation insurance.

Meeting the Burden of Proof in a Texas Work Injury Claim

Temporary workers who are injured at work when the host employer is a non-subscriber to workers’ comp insurance or when a third party caused the injury must prove negligence to succeed in a work injury claim.

Under Texas civil law, workers must prove by a preponderance of the evidence — or more likely than not — that the employer or third party’s actions were reckless or negligence, which involves satisfying multiple criteria:

• The employer or third party owed a duty of care to the temporary worker.
• The employer or third party breached this duty through negligence or recklessness.
• The breach directly caused their injuries, which resulted in damages.

Let’s look at some examples.

Temporary Worker Injury Claim Example 1

Say you’re hired by a staffing agency and have a temp job at a construction site. The construction site manager, hired by the construction company you are temporarily working for, fails to block off an unsafe area and place signs warning of a trip hazard. You approach this area and fall when a dangerous step gives way under pressure, causing you to sustain a back injury that requires physical therapy and puts you out of work for several months. In line with the burden of proof:

• The employer owed you a duty of care to provide a safe working environment.
• The employer was negligent by failing to warn you of a hazard and barricade the dangerous area.
• The employer’s negligence caused you to sustain your back injury — if they had verbally warned you the area was off-limits and barricaded or placed appropriate signage around the area to prevent you from approaching it, you would not have fallen through the unstable step.
• Your injury caused damages — you incurred medical bills for immediate treatment and ongoing physical therapy and lost substantial wages from being unable to work for several months.

By proving the above, you would be entitled to personal injury compensation. In a typical claim, you would recover your past and future medical bills and lost wages, and you would also be able to receive additional damages. For example, your injury might affect your ability to gain future temporary employment with the staffing agency if they prioritize temp workers who have more recently completed contracts, or your injury might prevent you from doing certain tasks, such as manual lifting, severely compromising your earning capacity. If your back injury leaves you with chronic pain, you would also be entitled to compensation for the pain and suffering it causes.

Temporary Worker Injury Claim Example 2

For a second example, let’s consider third-party negligence.

You’re injured in an accident when the boom of a nearby crane unexpectedly snaps, causing the load to strike you. The crane was carrying a load significantly under its maximum-rated capacity, and an investigation revealed that the metal used in the boom had impurities that compromised its strength and made it defective.

Regardless of whether or not your employer has workers’ compensation insurance, you can pursue compensation from the crane manufacturer on the following grounds:

• The crane manufacturer owed a duty of care to provide defective-free equipment that operates as intended under the advised conditions (i.e. when lifting a load at or below the stated capacity).
• The crane manufacturer violated this duty of care through negligence: the manufacturer should not have used impure metal and should have conducted quality control checks to identify any defects before authorizing the machinery for sale.
• The defect led to the crane boom failing despite carrying a light load, causing you to sustain head injuries when the load struck you.
• Your head injuries require extensive medical treatment and leave you with long-term impairments that restrict your ability to work in construction in the future.

Temporary Worker Injury Claim Example 3

There’s no denying that a temporary employee who suffers a work injury can recover substantial compensation via a personal injury claim, but this does not always negate the benefits of workers’ compensation insurance or make it the “lesser” option. Consider the following scenario:

You’re a temporary worker assigned to manage inventory in a warehouse. Earlier in the day, a colleague spills some liquid in an aisle. They followed company protocol by cleaning the spillage and placing a caution sign where the spillage occurred and the floor was still wet. You are aware of where the spillage occurred, but while carrying an item to be stored on a nearby shelf, you lose your balance and step onto the wet area, causing you to slip and fall. You twist your ankle and stretch your arm to break your fall, causing you to fracture your wrist.

You check with your host employer and staffing agency and discover the employer has workers’ compensation insurance and extends its coverage to temporary workers.

In this situation, you cannot file a personal injury claim as you cannot satisfy the burden of proof: the employer was not negligent, and your colleague followed the required steps to clean up the spillage and warn of the hazard by placing the wet floor sign. You knew about the hazard and only slipped because you lost your balance.

However, because your host employer has workers’ comp, you can recover the cost of your medical treatment (such as emergency room costs, placing your wrist in a cast, medication for the pain, and follow-up consultations to monitor progress) and a portion of your lost wages due to being unable to work while your injuries heal. You are entitled to these benefits despite your employer not being negligent because your claim is based solely on the fact that the injury occurred in the scope of your employment.

As a temporary worker, you should not underestimate your rights and the protections available to you under Texas law. If you are injured in an accident as a temporary worker, you may be entitled to substantial damages in a personal injury claim. Our personal injury lawyer in McAllen and San Antonio can help you get the compensation you deserve if you are hurt by the negligent actions of a non-subscribing employer or a third party. We provide a free, no-obligation consultation so you can explore your options.

To see if you have a claim and book your free case review with our leading Texas work injury attorney, call 855-LAW-NINJA or submit a contact form. You don’t pay fees until we win.