OSHA has been broadening its definition of 'primary employer' in regards to temporary workers. What will that mean for manufacturers?
Manufacturers that use temporary employees, either through staffing agencies or subcontractors, should pay close attention to recent policy changes that could increase their safety and training obligations as joint employers.
Farrah Fielder, general counsel for the National Association of Professional Employer Organizations, and Todd Logsdon, a partner at Fisher & Phillips in Louisville, talked about those changes and their implications at the Safety Leadership Conference this week. Mark Gomaska, an associate for Fisher & Phillips, led the panel.
In September, the National Labor Relations Board ruled that companies that use temporary workers are considered “joint employers" and share responsibility with the temp or subcontracting agency for those workers. The rule no longer requires that companies exercise direct control over temp workers to be considered joint employers. Instead, merely having the authority to control qualifies them as joint employers.
“Parent companies who have subsidiaries are going to feel this,” said Fields of the NLRB decision. “Franchisers and franchisees. … Any company that contracts with another company to perform services.
OSHA has its own rules regarding temporary workers, so it’s not yet clear how the NLRB decision will apply to OSHA regulations, the panelists said.
But even before the September decision, OSHA’s rules were moving toward more joint employer responsibility on the part of the parent company.
In spring of 2013, said Fields, OSHA began seeing more deaths of temporary workers occurring because of ill training and hazardous conditions and decided such workers needed more protections. It created the Temporary Worker Initiative, which stipulates that “in some situations, the key attributes of the traditional employer-employee relationship are shared by two or more employers in such a manner that they each bear responsibility for compliance.”
Currently, said Fields, the company that directs a temp employee’s day-to-day activities is the primary employer in OSHA’s eyes. But that could change with the NLRB decision, broadening the parent company’s responsibility if it merely has the authority to control--even if it does not exercise that authority.
With these two decisions, “you have to look at temporary employees as essentially the same as your employees,” Logsdon advised the group. “You want to treat them the same. For OSHA record keeping, if you have temporary employees in your workplace, they go into your OSHA [reports].”
Here are some other recommendations the panel made to get ahead of the NLRB ruling and minimize risk:
1. Investigate training. Instead of taking the staff agency’s word that a temporary employee is trained in, say, forklift operation, “you’re required to verify and validate,” says Logsdon.
2. Expect to provide training on your own specialized equipment. Don’t expect the agency to do it. “It’s pretty hard for a staffing agency to accomplish that hands-on training back in their office in a strip mall,” Logsdon said.
3. Spell out the training agreement in the contract with the staffing agency. “You have to have that worked out,” Logsdon said. “If you’re the host employer expecting a worker to come trained with the forklift, you want some confirmation that’s been done. What’s going to happen if either one of you doesn’t live up to your obligations? You’re both going to get cited.”
4. When you train, you are obligated to teach in a way the temp can comprehend. You are responsible for finding out what language a worker speaks fluently, and whether that worker is literate. Providing training handbooks in both English and Spanish isn’t enough if a worker speaks neither language—or does speak one of those languages but is not literate. You may need a handbook in the worker’s language, or in the case of illiteracy, “you can’t just hand them a handbook,” says Logsdon. “You may have to use pictograms or oral communications” and avoid or explain vocabulary that a hire may not be familiar with. “When you do it, document it, because it will come back to bite you if you don’t.”