In a stunning recent decision, the Wisconsin Court of Appeals held that temporary employees who are injured/killed while performing services for their host employer have the right to choose between the receipt of workers' compensation benefits under the Wisconsin Worker's Compensation Act or the pursuit of a personal injury claim against the host employer. Under the Wisconsin Worker's Compensation Act, temporary employees who are injured while performing services for their host employer and "make a claim" for worker's compensation benefits are precluded from maintaining an action in tort against the employer that compensates the temporary agency for their services (i.e., the "host" employer). Thus, if the employee makes a claim for worker's compensation benefits against the temporary agency, he/she may not pursue a personal injury claim against the employer for which it was performing services when injured. But what if the employee never "makes a claim for compensation" against the temporary employer, and chooses instead to sue the host employer?
Today, a number of small Illinois businesses use employee leasing companies to handle payroll, human resource matters, and workers' compensation insurance on their workers for the convenience and cost savings.