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Under CA Workers' Comp system, what a HI-Tech employee who works at the job site of a client of a staffing agency is perceived?

San Jose, CA |

This a follow-up Workers' Comp question. The original one is available at the link below:

Based on a contract signed with the staffing agency, the HI-Tech employee referenced is *NOT* INDEPENDENT CONTRACTOR, NOR is s/he referenced as LEASED employee. The consultant/employee works under full control of the client but is paid by the staffing agency based on W-2.

All work/task assignments, reviews, software or hardware tools, equipments, schedules, etc. are made or provided by the client NOT by the staffing agency.

Under CA Workers' comp:

a) Are client and agency both employers?
b) Is s/he a *leased* employee based on a possible contract signed between employers?
c) Is/ s/he a day laborer?

It is not (they are not) really that complicated question(s). All clear, meaningful, and politics-free, replies are very much appreciated. In the contract signed between the consultant/HITech employee and the staffing agency, there is NOT any reference to any *Lease Employment* or her/him as being misclassified as *Leased Employee* by the client and agency during the course of her/his employment! **The details included on the comments made to Atty Shery L Lam is based on the trial transcripts!**

Attorney Answers 5


You have a very interesting set of facts. In workers compensation we have terms such as general employer and special emplolyer that are used for this type of situation where both companies are employers. Usually the staffing agency will provide the workers compensation coverage unless they are not insured, where it would then fall on the other company. There are also disputes as to who has coverage when one of the company's insurance has gone bankrupt. As an injured worker, who provides the coverage should not be of issue to you. Based on the facts you give, it sounds like you are likely an employee, but all facts should be taken into consideration and it may be something that ends up in litigation.

Disclaimers: Making a false or fraudulent workers compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine. Each case is pursued differently based on its own merits. As such, there is no guarantee as to the outcome of any case. No attorney/client relationship will be established by contact with this AVVO answer or any messages or emails from Silberman and Lam, LLP. Attorney/client relationship will begin only when a retainer has been signed.

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Thank you for your answer. Your response is meaningful and alludes to the facts in place. As you are well aware of, similar cases have already been litigated and there are case laws. I also found the response provided by Atty Michael Early is truthful which mirrors the truths closely: Now, please see how the trial WC ALJ ignored the facts, WC rules, and case laws during the litigation: " ... we had an off-the-record discussion regarding questioning of the [hostile] defendants' witness. This WCJ indicated questions regarding the contract between [the on-site employer and the staffing agency] or questions regarding potential independent contractors' status will not permitted; ..." Said WCJ also ignored the pretrial agreement between the parties where they both had admitted their being the employers of the [HI-Tech} employee/consultant. Said WCJ changed this non-issue to an issue during the trial by considering the Hi-Tech employee/consultant as being the leased employee of the two employers! Hallelujah!! This was one of the many errors occurred in this case which all have gone unnoticed and been ignored! Hallelujah!!


My answer would be the same as before. If you want a response from workers compensation attorneys it would be prudent for you to re-post this in the Workers Compensation practice area instead of the Employment/Labor practice area. While it may seem one would consume the other, Workers Compensation is a very different practice area.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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I highly recommend talking to an attorney whose practice includes CA work comp. Likely you have a work comp claim with the agency's work comp carrier, but someone needs to review the contract and also understand what your work duties entailed both with the agency and with the employer who contracted with the agency (assuming they did) for your presence. One way to find a work comp attorney is through the organization California Applicants Attorneys Association.
Best of luck!
-Rob Bicego

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It sounds like you worked for an agency who was your employer. Your employer then contracted with a company where you went and did work. If you were injured doing this work, you would have a WC claim against the company that hired you i.e. the agency. You could potentially also have a personal injury claim against the company that contracted with your employer but that PI claim would be subject to a credit in the WC claim. You should hire an attorney.

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Each state is different however in most a staffing service is the actual employer for workers compensation purposes. In my state, the (place where you work) employer may also be considered an employer for workers compensation in the event that the staffing service doesn't have workers compensation insurance.

If this information has been helpful, please indicate by providing feedback that the answer was either "helpful" or "best answer" as appropriate. Legal Disclaimer: Mr. Connell is a Colorado attorney licensed in only that state. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question.

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