On February 28, 2018, Governor Scott Walker signed 2017 Wisconsin Act 139 into law. The Act modifies Wis. Stat. 102.29 to essentially bar temporary employees from filing a tort action against an organization utilizing a temporary employee if that employee has a right to make a claim for workers’ compensation benefits. The bill closes a loophole created by the Wisconsin Court of Appeals in In re the Estate of Carlos Esterley Cerrato Rivera v. West Bend Mutual, 2017AP142.
Wis. Stat. 102.29 originally stated that an injured temporary employee could not file a tort action against the “borrowing employer” if the employee “makes a claim” for worker’s compensation benefits. In Rivera v. West Bend Mutual, the Court of Appeals found that if a claim was never made for workers’ compensation benefits, this would allow the injured employee to file a tort action against the borrowing employer.
2017 Wisconsin Act 139 changes the language of 102.29 from “makes a claim” to “has a right to make a claim”, essentially barring those temporary employees from filing a tort action against the borrowing employer IF the employee has the right to make a workers’ compensation claim.
The law went into effect on March 2, 2018.
Employers should review all contracts they have in place regarding temporary employees to understand if they have any potential risk exposures. If you need assistance in this process, we encourage you to work with your M3 account executive.