During the past 10 years, we've seen a dramatic increase in the use of temporary workers. The Bureau of Labor Statistics estimated that there were more than 2.8 million temporary employees in the United States. As temporary-employee numbers have increased, so too have the number of injuries and deaths to those employees.
As the number of injuries and fatalities occurring among temporary employees has risen, so has the interest among plaintiffs' attorneys, as well as OSHA.
OSHA recently has been very busy, citing employers for safety violations involving temporary employees. In June 2014, OSHA handed out a $135,200 fine to a Texas vegetable processor and its staffing agency for exposing temporary employees to dangerous noise levels, toxic chemicals and other alleged hazards. In that same month, OSHA issued a $40,600 fine to a California cereal maker for exposing full-time and temporary employees to electrical, fall and noise hazards. Also in June, OSHA cited five companies – including four staffing agencies – for alleged safety violations that led to the death of a temporary employee in New Jersey.
A waste management company was cited by OSHA for the death of a 31-year-old temporary employee assigned a new job of loading garbage onto a disposal truck. That employee's death occurred on the third day of this new job. OSHA issued a $192,000 fine against a different employer for safety violations related to the death of a temporary employee who was killed on his first day on the job. It is anticipated that OSHA's initiative involving reviewing the safety and health of temporary employees will be continuing for a significant period of time.
These deaths have not been lost on the national media, which has been focusing on employers using temporary employees and the workplace hazards that these employees face. ProPublica recently featured an article on the need to improve temporary employees' safety, noting that while using temp workers is one of the fastest-growing segments of the economy, it also is one of the few in which the injury rate has been increasing.
In addition, workers' rights groups such as the National Staffing Workers Alliance and the National Council for Occupational Safety and Health have issued a list of recommendations for improving the safety for temp-agency employees. This includes recommending the passage of a "Temporary Worker Right To Know" law such as the one passed in Massachusetts.
OSHA Initiative to Protect Temporary Workers
As mentioned earlier, during the past several years, there have been a number of high-profile fatalities involving temporary employees. As a result of these high-profile fatalities, OSHA in April 2013 launched an initiative to further protect temporary employees from workplace hazards. As part of this initiative, OSHA announced that it was making a concerted effort using enforcement, outreach and training to assure that temporary employees are protected from all workplace hazards.
OSHA noted that all employers have the responsibility to provide the appropriate safety and health training to all employees regarding hazards in their specific workplaces. In order to determine if employers are meeting this requirement, OSHA directed all of its inspectors to determine during each of their inspections whether the employer had temporary employees working on the site and whether any of the identified temporary employees were exposed to violative conditions from that worksite. The initiative further directed the inspectors to assess, using records reviews and interviews, whether those employees had in fact received the required training in a language and vocabulary they understood and recognized the hazards associated with the task they were performing.
While the extent of responsibility of staffing agencies and the host employer under law depends on the specific facts of each case, staffing agencies and host employers normally are considered jointly responsible for maintaining a safe work environment for temporary employees, including ensuring that basic training, hazard communications and recordkeeping requirements are followed. OSHA has taken the position that both the host employer and a temporary-employee provider are joint employers and could receive citations for violative safety and health conditions, which could include the lack of adequate training regarding the safety and health hazards associated with the specific worksite. This is based on the fact that temporary-staffing agencies and host employers normally share control over the employee and are therefore jointly responsible/liable for that employee's safety and health.
OSHA has identified a number of responsibilities for both vendors and contractors, as well as the temporary-staffing agency and the host employer using vendors, contractors and temporary employees.
With respect to workplace assessment, OSHA recommends that the contractors and temporary-staffing agency conduct an initial general safety and health assessment and periodically repeat the assessment at the host employer's location to ensure that the temporary employees are being placed in a safe work environment and are being provided any necessary personal protective equipment. If any unsafe areas are identified during the assessment, the temporary-staffing agency or contractor should ask the host employer to correct those hazards, inform the temporary employee(s) of the hazards identified, take reasonable alternative protective measures to protect the temporary employee and remove its employee from the job if a significant hazard is not properly corrected.
Similarly, for workplace assessments, the host employer should provide a safe work environment for the contractor's and temporary-staffing agency's employees, identify and mitigate any safety and health hazards within the host employer's site where the temporary employee may be working and promptly abate any safety and health hazard identified by the temporary-staffing agency's initial and periodic health and safety assessment, as well as abate any safety, health or environmental regulatory citation issued against the host employer's worksite.
With respect to safety training and the use of personal protective equipment, OSHA recommends that the temporary-staffing agency periodically review the provisions of required training as part of the general safety assessment. In addition, it recommends that the temporary-staffing agency provide basic or generic safety training to its employees, including an overview of topics appropriate to the worksite where they are being assigned, maintain written training records of all temporary agency-supplied employees and establish a reasonable basis for believing that the host employer's site-specific training adequately addresses the potential hazards to which its temporary employees may be exposed while working at the host worksite.
For the host employer, OSHA recommends that it provide all state and federal mandated compliance training applicable to the host employer's work environment and processes. In addition, it recommends that the host employer provide site-specific safety training to temporary employees in the language they best understand and in accordance with government regulations, which may specify the minimum training requirements for the regulation and the timeframe for which it must be delivered. Some of the OSHA standards training applicable to temporary employees include implementing lockout/tagout procedures; safe handling of chemicals and understanding the host company's hazard communication program; being made aware of the site-specific emergency procedures; proper certification training on powered industrial vehicles; and training on the proper use of PPE at the site.
With respect to injury and illness recordkeeping, it is clear that if the host employer directs the temporary employee's work, the host employer specifically will be responsible for maintaining the OSHA 300 logs for those temporary employees. This is not the case for vendors and contractors. The host employer must record any temporary-employee injury or illness on the OSHA 300 log, immediately notify the temporary-staffing agency of any injury to any temporary employee and offer alternative work to restricted temporary employees as part of the return-to-work program.
With respect to injury and illness recordkeeping, the temporary-staffing agency normally is responsible for providing medical management of injuries suffered at the host employer's work site. In addition, the temporary-staffing agency will provide the associated injury benefits, if applicable, as well as coordinate the administration of worker's compensation and any other issues associated with the employee's injury. Finally, the temporary-staffing agency is responsible for providing detailed injury information, which allows the host employer to accurately complete the OSHA 300 log and 301 form.
In addition to the legal liability associated from OSHA, there are other legal considerations that the temporary-staffing agency and the host employer should recognize. Specifically, as joint employers, normally the temporary-staffing agency and the host employer enjoy the same workers' compensation protection for an injury to a temporary employee. This normally is not true for vendors and contractors, which opens up potential legal liability to the host employer for injuries or deaths caused to employees of the vendor or contractor.
More states are allowing injured employees, whether full-time or temporary, to opt out of the workers' comp system if they can show willful or intentional conduct or gross negligence that resulted in the injury to those employees. This allows the temporary employee to potentially sue both the temporary-staffing agency and the host employer for intentional tort, normally in state court. The injury to a temporary employee also can result in third-party liability in the form of subrogation by either the temporary-staffing agency's litigation against the host employer or vice versa.
Finally, if the injury to the vendor, contractor or temporary employee results in the death of that employee, there is a much greater chance of criminal liability being brought against the vendor, contractor and temporary-staffing agency, as well as the host employer. While OSHA does have criminal provisions in the OSH Act, only two or three cases are referred each year to the Justice Department for criminal prosecution.
The more likely scenario for criminal liability against the vendor, contractor or temporary-staffing agency, as well as the host employer, comes at the state level. Either the county district attorney or the state attorney general potentially could bring an action for negligent homicide or other form of criminal liability against either the temporary-staffing agency or the host employer. Clearly, if the injury to the vendor, contractor or temporary employee results in that employee's death, the vendor, contractor or temporary-staffing agency, as well as the host employer, must recognize the potential for criminal liability and secure the appropriate legal counsel during the OSHA inspection as well as any local or state police enforcement investigation in order to preserve all legal rights or defenses available to either one of the entities.
Based on the statistics, it seems clear that the use of temporary employees will continue in the foreseeable future. This being the case, more employers will need to be aware of their legal rights, responsibilities and potential liabilities when using temporary employees, vendors or contractors. Also, temporary-staffing agencies should recognize that a joint liability may be placed on them and, thus, should do everything to ensure that the temporary employees they provide to host employers are protected from any safety and health hazards.
Edwin G. Foulke Jr. is an Atlanta-based partner with Fisher & Phillips LLP, a national law firm that represents employers in labor, employment, employee benefits, business immigration, workplace safety and civil rights matters. He also works in the Washington, D.C., area as needs arise. Foulke is co-chair of the firm's Workplace Safety and Catastrophe Management Practice Group. He is the former assistant secretary of labor for Occupational Safety and Health and the former chair of the Occupational Safety and Health Review Commission and is the only person in the country to have held both positions. Foulke can be reached at [email protected] or 404-240-4273.