The Borrowed Servant Rule: Liability Risks for Contractors and Owners

Contractors – of all tiers – are often surprised to learn they may be considered a “special employer” of individuals who actually work for independent third parties—such as temporary staffing agencies or equipment rental companies—on their projects. Even more surprising, contractors (including owners who self-perform) can be held primarily responsible for the negligent acts or omissions of these third-party workers because of this “special employer” status. How can a contractor become primarily liable for someone they do not pay, do not withhold taxes for, do not provide benefits to, and who is officially employed by another company?

The answer lies in an old legal concept called the “Borrowed Servant Rule.” Under this rule, a contractor can become a “special employer” of so-called “borrowed servants”—workers who remain employed by a third-party company but are temporarily assigned to the contractor for a specific job. The rule, based on outdated master-servant principles, focuses on who actually controls the worker. Variations of this rule exist in nearly every state, creating significant risks for contractors nationwide.

For example, imagine a contractor rents a crane or backhoe, and the rental company provides the operator. Under the Borrowed Servant Rule, the contractor typically becomes the “special employer,” the operator is the “borrowed servant,” and the rental company is the “general employer.” If a court finds the contractor to be the “special employer,” the contractor can be held liable for personal injury or property damage caused by the operator’s negligence—including injuries to the operator or damage to the rented equipment.

There are two main tests used to determine whether a contractor is a “special employer,” both centered on the issue of control. The first test looks at whether the contractor has a contractual right to control the work and how it is performed. This right is often hidden in standard contract language found on rental agreements, service contracts, daily tickets, acknowledgments, or similar documents. Contractors may not realize that by signing these documents, they are granted an express contractual right of control —even if the term “borrowed servant” is never mentioned and they never actually exercise control.

The second test considers whether the contractor actually exercises direct control over the “borrowed servant”—for example, by directing where, when, and how the work is done. No written contract is needed for this test; the contractor’s actions alone can establish “special employer” status. In many cases, contractors become “special employers” under both tests when they have both a contractual right of control and actually exercise that control.

Most of the risks and liabilities created by the Borrowed Servant Rule arise in situations involving temporary labor or equipment rentals, where contractors often control, to some degree, employees of a third party. Standard forms used by staffing agencies and equipment rental companies usually recognize this practice and almost always give the contractor the right to control the work performed by the “borrowed servant.” However, these forms rarely indemnify the contractor for the worker’s negligence or name the contractor as an additional insured on the employer’s general liability (GL) policy.

Because most contractors are unaware of this rule, they often fail to modify standard forms and assume the general employer’s insurance will protect them. However, as soon as the “borrowed servant” starts work on the project, the contractor becomes their “special employer” and is primarily responsible for any negligent acts or omissions, often with little or no recourse against the staffing agency or rental company that supplied the worker.

Many contractors first learn about the Borrowed Servant Rule only after suffering a loss caused by a “borrowed servant”—and discovering they are responsible for the entire insurance deductible, or worse, the entire loss if there is no coverage. At the same time, they often find that the workers’ compensation and general liability policies provided by staffing agencies or equipment rental companies rarely, if ever, cover personal injury or property damage involving “borrowed servants.”

Unless the standard forms used by the “general employer” are modified, the contractor remains exposed to claims and losses caused by the “borrowed servant.” Personal injury claims made by the “borrowed servant” are submitted to the contractor’s workers’ compensation policy, which can impact their safety rating and increase premiums. Third-party claims for personal injury or property damage are submitted to the contractor’s GL policy, subject to deductibles and potential premium increases. Most costly of all, property damage to the work itself (including schedule impacts) is often absorbed by the contractor due to insurance coverage exclusions. Learning about the rule the hard way can be extremely expensive!

Contractors who have experienced the negative effects of the Borrowed Servant Rule can take steps to reduce or eliminate these risks through insurance and indemnification strategies. First, they can require the “general employer” (such as a staffing agency or rental company) to obtain an “alternate employer endorsement” that extends workers’ compensation coverage to the “special employer.” Second, they can require the “general employer” to indemnify the “special employer” for losses, damages, and claims arising from the “borrowed servant’s” negligence. Third, they can require the “general employer” to name the “special employer” as an additional insured under the general employer’s GL policy. Finally, successful contractors stay informed about developments in the Borrowed Servant Rule in every state where they operate.

This publication is intended for general informational purposes only and does not constitute legal advice or a solicitation to provide legal services. The information in this publication is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel. The views and opinions expressed herein represent those of the individual author only and are not necessarily the views of Clark Hill PLC. Although we attempt to ensure that postings on our website are complete, accurate, and up to date, we assume no responsibility for their completeness, accuracy, or timeliness.