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Every month, a reader asks one of our sponsor legal experts about a work-related issue. These building trades law professionals respond in an Organized Labor exclusive. This month’s expert is Clifton Smoot of The Veen Firm P.C.. Ask Clifton a question at This email address is being protected from spambots. You need JavaScript enabled to view it.

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A staffing agency hired me to work temporarily at a worksite, and I suffered a major injury while on the job. I don’t know if either of the two companies has workers’ compensation insurance. Can I bring a civil suit against the staffing agency, against the worksite employer, both, or neither?

When a staffing or “temp” agency hires you and sends you to work for another company, and both entities retain control over you, this is an arrangement called “dual employment.” In the eyes of the law, both companies are your employer. The agency is known as the “general” or “regular” employer, and the employer to whom you were assigned is known as the “special” employer.

Under the Labor Code, the general and special employers cannot be sued in civil court for your injury if they had previously arranged for you to be covered by workers’ compensation insurance. (Cal. Labor Code. §3602(d).) That means that, even before you began work, the two companies should have agreed how your workers’ compensation insurance would be provided. For instance, they should have decided which company would purchase the policy, what insurance company would provide coverage, etc. Of course, they should have actually obtained the workers’ compensation insurance ahead of time and not after your injury already occurred. If your two employers did all this, then you cannot bring a claim against them in civil court—you can only bring a workers’ compensation claim against them in administrative court.

So what should you do? Immediately report the injury to both employers, and file a workers’ compensation claim. You should consult with a workers’ compensation attorney to make sure you receive fair treatment and adequate benefits. You should also consult with an experienced civil personal injury attorney. The attorneys can find out if your “dual” employers had arranged for you to be covered by workers’ compensation insurance. If that coverage was not in place at the time of your injury, then you may be able to bring a civil suit against one or both of your employers.

-Clifton Smoot, Trial Attorney at The Veen Firm, P.C.
Ask Clifton a question at This email address is being protected from spambots. You need JavaScript enabled to view it.

“Interaction via “Ask the Expert” does not establish an attorney-client relationship. Any advice given is neither legal advice nor does it serve as a replacement for hiring an attorney. In addition, any case results mentioned or discussed are not guarantees of similar results.”
Clifton Smoot

This Month's Expert; Clifton Smoot

Clifton Smoot is an attorney on the Leary Trial Team, which handles complex cases involving injuries and death arising from construction and worksite conditions, defective products, dangerous property conditions, negligent security, and collisions between cars, trucks, pedestrians, and bicyclists. Mr. Smoot has served people of all backgrounds, and cares deeply about helping every client recover from catastrophe. He graduated cum laude from UC Hastings College of the Law, received recognition for his "Outstanding Pro Bono Service," and was awarded the Pfaff Trial Lawyer Scholarship.

Before joining The Veen Firm, Mr. Smoot worked at a prestigious boutique law firm that represented both plaintiffs and defendants in personal injury cases. Working for plaintiffs in that setting, he kindled close relationships with his clients, and honed his ability to tell their stories to insurance companies, judges, and juries. He successfully advocated for clients who sustained brain injuries, amputations, spinal injuries, bone fractures, and other life-changing injuries. While working for defendants, he learned how defense attorneys and insurance companies work "behind the scenes," a valuable perspective he puts to use today when helping his clients at The Veen Firm.

In his free time, Mr. Smoot swims in the bay, hikes with his dog, and also enjoys cooking and dancing with his wife (often at the same time). He is also a coach for the UC Hastings Trial Team.

 

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