Ed Foulke (right) and Stephen Dwyer (left), along with moderator Victor Geraci (center), discussed the responsiblities for host and staffing employers of temporary workers at SLC 2014.
Ed Foulke (right) and Stephen Dwyer (left), along with moderator Victor Geraci (center), discussed the responsiblities for host and staffing employers of temporary workers at SLC 2014.
Ed Foulke (right) and Stephen Dwyer (left), along with moderator Victor Geraci (center), discussed the responsiblities for host and staffing employers of temporary workers at SLC 2014.
Ed Foulke (right) and Stephen Dwyer (left), along with moderator Victor Geraci (center), discussed the responsiblities for host and staffing employers of temporary workers at SLC 2014.
Ed Foulke (right) and Stephen Dwyer (left), along with moderator Victor Geraci (center), discussed the responsiblities for host and staffing employers of temporary workers at SLC 2014.

SLC 2014: They’re Not My Employees! (and Other Mistakes Employers Make)

Oct. 28, 2014
OSHA is taking a closer look at companies that employ temporary workers. That, combined with the agency’s new recordkeeping requirements, could spell t-r-o-u-b-l-e for employers who hire temporary workers.

Stephen Dwyer, general counsel for the American Staffing Association, didn’t mince words when talking about legal pitfalls for staffing companies and employers who hire temporary workers: “OSHA is on the lookout. You are going to be much more susceptible in terms of your contracts with staffing agencies and training for temporary workers,” he told Safety Leadership Conference attendees at a session titled, “They’re Not My Employees: The Practical and Legal Pitfalls Involving Temporary Workers.”

According to Dwyer and Former Assistant Secretary of Labor Ed Foulke, who now is a partner in the Fisher & Phillips law firm, OSHA will be examining the contracts between companies that hire contract workers and the staffing companies that supply them, the hazard assessments that are conducted for workplaces staffed with temporary workers and the general safety and site-specific training provided to temporary workers.

Dwyer commented that out of 977 temporary workers who were exposed to violative conditions, there only were 24 instances where the staffing company and the client company both were cited. In most cases, the host employer received the OSHA citations.

Foulke noted that it was one of his clients that jump-started OSHA’s recent scrutiny of safety for temporary workers. A temporary employee was killed on the job two hours into his shift on the first day of work.

“That’s as bad as it gets,” Foulke admitted. “The company actually had a good safety program, but this fell through the cracks somehow. The host employer [his client] thought the temporary employer provider was responsible for training and the temporary employee provider thought otherwise.”

“OSHA consistently has taken the position that temporary employees are more susceptible to injuries than your employers,” Dwyer told the audience members, most of whom said they have utilized or are using temporary employees. “[OSHA] is doing it to improve temporary worker safety, but if you have a temporary worker fatality – God forbid – you’d better believe that OSHA will publicize it.”

He said his organization is trying to be proactive regarding safety for temporary workers and that he personally was asked to a private meeting with OSHA Administrator Dr. David Michaels. “It’s never a good sign when the head of a federal agency calls you in for a meeting,” he joked, adding the agency probably will come out with a set of recommended practices for host employers and staffing companies.

He noted that old contracts were not specific and essentially called for the staffing company and the host employer to “obey all laws, blah, blah, blah. Now, contracts should include who’s providing PPE, responsible for site-specific training and reporting injuries on the OSHA 300 log,” Dwyer advised.

Foulke added, “If you have temporary employees at your site, you need to treat them exactly like your employees.”

He used audiometric testing as an example, saying that if the noise levels at your site required you to conduct baseline testing and annual audiometric testing for your employees, you’d better do it for temporary workers as well. Foulke acknowledged that can be a daunting proposition, particularly if temporary workers are rotating in and out fairly frequently, but it is the best way to ensure OSHA can’t take exception to the way a facility handles hearing protection for temporary workers.

“You’re supposed to do a hazard assessment for PPE,” said Foulke. “It doesn’t have to be written, which is bizarre, but you have to certify that you did a hazard assessment” that includes all employees.

“If you’re not doing site-specific training [for temporary employees], you’re going to get cited, I’m confident of that,” said Foulke, with Dwyer adding, “A staffing company can’t do site-specific training” for your site.

Legally, the company with “supervision and control” that is “directing the means and manner of the work” is responsible for training,” said Dwyer, “Nine times out of 10, that’s the host employer.”

He and Foulke also noted that if the temporary staffing employer notifies the employer that its employees have specific safety concerns, or if that temporary staffing employer or temporary worker points out a hazard, especially in writing as part of a hazard assessment, the host employer has to address it. “That is not privileged communication,” said Foulke, “and OSHA will get that document as part of a records request.”

If an employer has knowledge of a safety and health hazard but didn’t address it and an employee is exposed to potential injury or illess as a result, the violation could be classified as “willful” and the potential fine for that single violation jumps from $7,000 to $70,000.

That host employer also is responsible for reporting temporary employee injuries and illnesses on their OSHA 300 log and likely will be cited for a recordkeeping violation if OSHA catches the error.  The problem for host employers, Foulke admitted, was that often, if a temporary employee is injured, he or she “just disappears.”

The temporary staffing agency pays the workers’ compensation insurance for their employees and as the employer, knows if that temporary worker went to the hospital, requires continuing medical care or time off of work, is required to have light duty, etc. All of that information needs to be included on the OSHA 300 logs by the host employer.

“You have to make a good-faith effort to contact the temporary staffing employer to get that information,” Foulke counseled, even if it means going back for the past five years to fill in those gaps if host employers have not been including injuries and illness for temporary workers on their OSHA 300 logs. The 300 A summaries need to be revised, said Foulke, “but not backdated. That opens you up to a criminal charge.”

Foulke also noted that new OSHA recordkeeping requirements, that now include industries that previously were not included, also require employers to call OSHA within 24 hours if an amputation occurs, an eye is lost or one or more employees is hospitalized. And an “amputation” now includes the loss of a tip of finger, with no bone loss.

“If you call OSHA [as part of the new recordkeeping requirements], you’re probably going to get a visit,” said Foulke, all the more reason to ensure that temporary employees are appropriately trained and are wearing the right PPE.

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