Jones v. Aerotek Staffing, No. 2009-CA-001238-WC (Ky. Ct. App. 2010).   A temporary staffing agency’s duty to provide a safe work place for its employees does not make it vicariously liable for enhanced benefits under KRS 342.165 resulting from a safety violation of a company where the employee is placed to work.

Jones was employed by Aerotek, a temporary staffing agency.  Aerotek placed Jones with MISA, where he worked as a laser cutter operator on a machine, which the evidence established was unsafe as a result of MISA’s conduct.  Jones was compensated for his injuries by Aerotek, but alleged his entitlement to an enhancement of benefits based on a safety violation which resulted in his injury.  While the ALJ agreed with Jones and awarded the enhancement benefits allowed by KRS 342.165, the Workers’ Compensation Board and the Court of Appeals disagreed, holding that the safety violation was committed by MISA not Aerotek and, therefore, Jones could not avail himself of the 30% enhancement of KRS 342.165.

 COMMENT:  The result was certainly “harsh and unfair” as observed by both the Workers’ Compensation Board and the Court of Appeals, but the Court explained that in order for a temporary staffing agency can be found to have violated a safety statute or regulation, an employee must show the agency  itself “’had knowledge of, approved of,  directed, or acquiesced in’ its client’s actions.”  Such a circumstance would rarely, if at all, materialize.  The Court urged legislative review of the issue.

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