Keeping Temporary Workers Safe Isn’t Your Problem? Think Again

The trend toward replacing full-time employees with temporary workers is expected to be one of the fastest growing trends in U.S. industry in the coming decade, according to a 2014 report by the National Employment Law Project. Some even estimate that as many as 40 percent of workers will be freelance by 2020 [1]. This claim may be dubious since only two percent of the current workforce are temporary workers, but with 12 million workers moving through staffing agencies in 2013 and employment via temporary agencies now at an all time high, it’s fair to say the trend will likely continue.

All of this is no mystery because temporary workers make an average of 22 percent less than the median income [2]. In other words, employing temporary workers can be an attractive option for some manufacturers that are struggling to meet increasingly lean margins and global completion.

IMPLICATIONS ON WORKER SAFETY
For years the responsibility for the safety of temporary workers was in something of a legal limbo. Host companies (those who direct the work of the temp or contingent workers) believed that the temp agencies were responsible for providing regulator safety training. The temp agencies argued that, because they could not possibly know all of the hazards to which the temps would be exposed while on the job, the responsibility for protecting them had to lie squarely on the shoulders of the host companies.

This stalemate created no small number of  problems and the law was clarified to state that temporary firms and host companies share the responsibility for the safety of workers. “Host employers need to treat temporary workers as they treat existing employees. Temporary staffing agencies and host employers share control over the employee and are therefore jointly responsible for temp employee’s safety and health. It is essential that both employers comply with all relevant OSHA requirements,” authored David Michaels, PhD, MPH, Assistant Secretary of Labor for the Occupational Safety and Health Administration.

While OSHA has not yet announced any official enforcement strategy relative to the safety of temporary workers, it’s clear that the agency is taking an increased interest in the topic. It has released documents telling its inspectors to assess the compliance of both staffing firms and host employers. The documents also create a new code that identifies instances where temporary workers are exposed to safety and health violations and directs inspectors to determine whether or not temporary workers received required training.

Furthermore, OSHA inspectors will assess the extent to which the training was delivered in a language and using a vocabulary the temporary workers could understand. The co-employment avoidance defense (the practice of host companies claiming that if they were to train contractors or temporary workers as if they were their own workers could jeopardize the “temporary” status of workers and subject them to IRS penalties and fines) no longer holds up. According to Ed Foulke, a partner at Fisher & Phillips, LLP (Atlanta, GA) a national law firm that represents management in labor and employment law matters. “[As far as safety is concerned] You essentially have to treat temporary workers as if they were your own.” [3].

This puts employers in the difficult position of ensuring that workers are properly trained, not just in regulatory topics, but perhaps in job-specific training as well. This topic was addressed in detail at They’re Not My Employees: The Practical and Legal Pitfalls Involving Temporary Employee Safety, a technical session at the 2014 Safety Leadership Conference in Chicago, IL, that provided a comprehensive look at the topic and had more than its fair share of good advice for anyone who uses temporary workers:

• It doesn’t matter that temporary workers come and go so quickly that you can’t cost-effectively train them. The release of the OSHA documents makes it clear that the regulatory body has an interest in protecting these workers even though the nature of temporary work makes it difficult to ensure the workers receive proper training. Furthermore, crying poormouth is unlikely to find sympathetic ears among regulators.

• An on-site administrator from the temp agency doesn’t count as supervising the temporary employee. A key provision in determining which firm is primarily responsible for ensuring that workers are appropriately trained rests on which firm supervises the workers. Many host companies have tried to use this requirement as a loophole by claiming that an on-site representative from the temp agency the standard for providing supervision. This position is an easy mistake to make, since often times the administrator in question handles time keeping, benefits questions, and determines who’s working when and where. But under federal eyes, supervision is usually the responsibility of the host company. OSHA reasons that a temp agency administrator is not able to ensure site safety because they lack the authority to stop work; the host company has the most control over the workplace and is thus responsible for keeping it safe.

• It doesn’t matter how short the tenure of the temporary worker is you have to abide by the law. The host company is on the hook for providing (with some exceptions) the temporary worker with all required PPE, and must provide temporary workers with training that is identical or equivalent to the training it provides its own employees, regardless of the length of employment. This is sure to frustrate host employers who may have exceptionally high turnover rates among temporary hires, but the law is the law. Of course this may encourage some companies who engage in the “90 days and out” employment practices (where they continually churn temporary employees) to hire the workers as full-time employees instead of temporary workers, but time will only tell.

• Read the contract between you and your temp agency. The contract between the temp agency and the host company will probably spell out some of the “who does what?” of training, so reading and understanding it is vitally important. Unless one company knows for certain that the other company provided the training, they will be on the hook for doing it. Additionally, they would be wise to verify that the staffing agency training is (a) appropriate and (b) meets OSHA standards. Personally, I wouldn’t take a staffing agency’s word when it comes to training. I would recommend asking for proof of training (in the form of training records and course outlines) before workers begin labor activities onsite.

• This issue isn’t going away. During the technical session, Victor Geraci quoted David Michaels as saying, “A worker’s first day on the job shouldn’t be their last day on the planet.” The proliferation of temporary workers and the upswing in the deaths and serious injuries of temporary workers has made OSHA take a hard look at how employers (whether employers of record or host companies) ensure the safety of temporary workers.

This issue is emerging and will likely change the face of the temporary worker industry. For many manufacturers, hiring temporary workers will remain an attractive and lucrative practice. But for those companies who do so, they will find increasing scrutiny from OSHA and will likely find the practice less profitable than it has been in years past.

[1] Intuit 2020 Report: Twenty Trends That Will Shape the Decade (2010)

[2] Temp jobs make up growing share of workforce (Baltimore Sun)

[3] Foulke made this remark during the technical session, They’re Not My Employees: The Practical and Legal Pitfalls Involving Temporary Employee Safety, that was held during the 2014 Safety Leadership Conference.