Nothing in this article should be taken as legal advice. Every case is different.
If you’re hurt at a poultry plant in Virginia while a staffing agency, a sanitation or cleaning contractor, or a payroll company (a PEO) signs your checks, you are still covered by Virginia workers’ comp. In most cases the company that pays you, and its insurance carrier, is the one responsible for your claim. The plant can also end up responsible, either because it controlled your work closely enough to count as your employer too, or because the law makes it a “statutory employer” of a contractor’s workers (Va. Code § 65.2-302). Which one it is depends on how the arrangement is set up, and the first week is when you lock in the facts that answer that question.
Who Is My Employer If a Staffing Agency Pays Me?
Usually the staffing agency. Virginia law defines a “staffing service” as a business that hires its own employees and assigns them to clients, including temporary staffing (Va. Code § 65.2-101). The agency is the one expected to carry workers’ comp insurance on you, and its carrier is usually the one that handles the claim.
The plant can be your employer too. Virginia applies the old “borrowed servant” rule to workers’ comp: when one company lends a worker to another, the common law of master and servant decides whether the worker is an employee of the borrowing company (as the Supreme Court of Virginia described it in a 2019 decision, Record No. 171467). If plant supervisors set your line, your pace, your breaks, and decide whether you stay or go, those facts can matter more than whose name is on the paycheck.
Whose Insurance Pays? A Quick Guide
| Who pays you | Who is usually responsible | When the plant comes in |
|---|---|---|
| Staffing or temp agency | The agency and its comp carrier | If the plant controlled your work like an employer would (borrowed servant rule) |
| Payroll company (PEO) | A registered PEO is deemed an employer of its workers and may carry the policy (Va. Code § 65.2-803.1(D)) | The same law says you are also “an employee of the client company for all purposes” (§ 65.2-803.1(F)) |
| Sanitation or cleaning contractor | The contractor and its comp carrier | If the cleaning work is part of the plant’s own trade or business, the plant can be a statutory employer (§ 65.2-302(A)) |
| Nobody has insurance | The Commission can order payment from the Uninsured Employer’s Fund (Va. Code § 65.2-1203) | A plant that is a statutory employer may be the one responsible |
Can the Plant’s Workers’ Comp Cover a Sanitation Worker?
It depends, and this is where these claims get hard. Under § 65.2-302(A), when a company hires a contractor to do work that is “a part of his trade, business or occupation,” the company is liable to the contractor’s workers as if it had hired them directly. That company is called the statutory employer.
The test the Supreme Court of Virginia uses asks whether the work is “normally carried on through employees rather than independent contractors” (a Supreme Court of Virginia decision involving Shell Oil Co., 212 Va. 715, 722 (1972), quoted in the 2019 decision above). For a night sanitation crew at a poultry plant, that turns on facts like these:
- Whether the plant, or plants like it, use their own employees to clean and sanitize the lines.
- Whether sanitation is built into the plant’s production process or treated as an outside service.
- How the contract between the plant and the cleaning company describes the work.
Statutory employer status is not automatic. It depends on the facts of the work and the contract, and a plant that only buys a service from an outside company may not qualify.
Why It Matters Who Your Employer Is
When the company that pays you has insurance and accepts the claim, the label may never come up. It matters in three situations:
- The contractor or agency has no insurance. A statutory employer above it can be liable for the benefits.
- The carrier denies that you worked for its policyholder. Two companies pointing at each other can stall your checks and your medical care for weeks.
- The plant’s negligence caused the injury. Workers’ comp is usually your only remedy against your employer (Va. Code § 65.2-307). When a staffing agency or PEO has comp coverage, that rule protects the plant (the client company) too (§ 65.2-803.1(G)). If a sanitation contractor pays you, whether the plant is protected turns on whether it is a statutory employer. If it is neither your employer nor your statutory employer, a separate negligence lawsuit against it may be possible. That lawsuit is outside this article.
If you were treated like an independent contractor rather than an employee, read what to do when your employer lists you as an independent contractor.
What Should I Do the First Week?
| Step | Why it matters |
|---|---|
| Report the injury in writing to the agency or contractor and to the plant supervisor | Written notice is due within 30 days, and a statutory employer should get notice too (Va. Code § 65.2-600) |
| Photograph your pay stub and badge | They show who pays you, who assigned you, and where you worked |
| Write down your supervisors’ names and which company each one works for | Who directs your work is a key fact in borrowed servant cases |
| Ask for the name of the comp insurance carrier | If two companies each say it’s the other’s carrier, that is a sign to get help early |
| Get medical care and tell the provider it’s a work injury | Your medical records start the paper trail (choosing a doctor matters here too) |
| File your own claim with the Commission | You have two years from the accident (Va. Code § 65.2-601); naming every possible employer is easier at the start (how to file) |
Expect a call from an adjuster asking for a recorded statement. Questions like “who told you what to do that night?” are not small talk in these cases. Your answers can decide which company is on the hook.
Immigration questions are outside this article. For the injuries we see most often on the line, see poultry plant injuries and Virginia workers’ comp.
What If the Plant Says You Don’t Work for Them?
That is common, and it may be true. The plant might not be your employer at all. That still leaves the agency, the contractor, or the PEO, and their carrier. When the companies disagree, the Workers’ Compensation Commission decides who your employer is. A deputy commissioner hears the evidence first, the Full Commission can review that decision, and the Court of Appeals of Virginia can review the Full Commission.
Hurt Working Through a Staffing Agency on the Eastern Shore?
Pathfinder Injury Law is the only workers’ comp firm with an office on the Eastern Shore, in Chincoteague. Learn more about our Eastern Shore workers’ comp practice. Pathfinder Injury Law handles only Virginia workers’ compensation claims. Call 804-505-0633 or use our online contact form.