Skip to main content

Koroma v. Besam Automated Entrance Systems, Inc.

A-6136-01T1 (N.J. Super. App. Div. 2003) (Unpublished)

WORKERS COMPENSATION; SPECIAL EMPLOYERS—The company for whom a leased employee works is treated as the employee’s “special employer” if it controls the worker’s activities, and if the employee’s work injuries are covered by the leasing company’s workers compensation coverage, the employee has no claim against the company for whom the work is actually performed.

A man was employed by a temporary employment agency and assigned to work as a mechanic for a door manufacturer. He was paid by the agency and covered under the agency’s workers’ compensation policy. “He reported directly, to [the door manufacturer’s] work site, was trained by [the manufacturer’s] personnel, and [the manufacturer] provided all of the tools and equipment [he] needed on the job.” He did not regularly contact the employment agency and received his daily instructions from the manufacturing company’s crew leaders. One day, while transporting doors on a cart, the cart turned over and the worker was injured. He applied for workers’ compensation benefits and received those benefits through the agency’s carrier. He then filed a negligence action against the door manufacturer.

The lower court found that the injured worker was a special employee of the door manufacturer, basing that decision on the fact that the employee worked every day for a year and a half under the door manufacturer’s control and direction. He used their equipment to get the job done and accepted that he was leased out by the agency to the door manufacturer. “As a result, [he] consented to that special relationship, and voluntarily submitted to it.” The injured worker appealed, arguing that he was not a special employee of the door manufacturer “because he did not enter an implied or expressed contract of hire with [the door manufacturer], and second, that it against public policy to allow [the door manufacturer] to assert the ‘special employee’ defense when it did not provide workers’ compensation insurance for its temporary workers.” The worker’s arguments were unavailing. “Under New Jersey law, an employee can have two employers for the purpose of workers’ compensation: a direct, ‘general’ employer may ‘lend’ an employee out to a second, ‘special employer.’ ... ‘By definition, a special employee is an employee of the borrowing employer,’ and is subject to the same limitation as a regular employee under the exclusive remedy provision under the Workers’ Compensation Act.”

The key factor in determining whether an employee is a “special employee” is “whether the borrowing employer had the right to control the special employee’s work.” It is not relevant whether the special employer maintains workers’ compensation insurance. Here, the agency maintained such coverage and the injured worker was entitled to only one recovery. There was no argument that the door manufacturer had the right to control the employee’s work. As to the existence of an employment contract, “[n]o formality is required, an assent to the offer of employment may be manifested in words, or ‘implied from conduct without words.’” Here, by voluntarily reporting to work, and accepting supervision and training, the injured worker was deemed to have consented to the implied contract. Had the agency retained control over the employee, then an implied contract with the door manufacturer would not have existed. Here, however, the agency yielded almost exclusive control to the door manufacturer, and retained only administrative functions such as paying the worker.

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •