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Illustration by Joyce Hesselberth

Safety First

​In June 2014, OSHA handed out a $135,200 fine to a Texas fruit and vegetable processor and its staffing agency for exposing temporary employees to dangerous noise levels, toxic chemicals, and other alleged hazards. The action is one of many, indicating that the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has begun taking employers to task over safety violations involving temporary employees.​

The processor was cited for 12 serious safety and health violations, with a penalty of $76,100, for failing to prevent workers from exposure to hazardous chemicals; identify and evaluate respiratory hazards in the workplace; and ensure that a hearing conservation program was implemented for workers exposed to noise levels that would cause permanent hearing damage, according to an OSHA announcement.

Additionally, the processor was cited for a series of repeat violations, with penalties, for failing to ensure sufficient working space around electrical equipment and unobstructed access to fire extinguishers. Three other violations were given for failing to record injuries of temporary workers, review logs for accuracy, or ensure that safety instructions were clearly posted on dangerous machines.

OSHA inspectors also cited the staffing agency for one serious safety and health violation, with a penalty of $6,300, finding that temporary workers employed by the agency were exposed to chemical hazards and were not trained on chemical safety.

“Workers, whether employed directly by the company or as a temporary worker, require proper training on workplace hazards,” said Kelly C. Knighton, OSHA’s area director in San Antonio, in a press release. “Both host employers and staffing agencies have roles in complying with workplace health and safety requirements, and they share responsibility for ensuring worker safety and health.”

Along with its acti​ons in Texas, OSHA cited five companies, including four staffing agencies, for alleged violations that led to the death of a temporary employee in New Jersey. The administration also cited a waste management company for the death of a 31-year-old temporary employee tasked with loading garbage onto a disposal truck; he was killed on the third day of his new job.

These are just some of the instances where OSHA has taken action in recent months, and the agency’s interest in the safety and health of temporary employees is expected to continue.

This may not be surprising, given that the use of temporary employees has dramatically increased over the past 10 years. The U.S. Bureau of Labor Statistics (BLS) recently 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 numbers of injuries and deaths to those employees. These injuries and fatalities have piqued the interest of plaintiffs’ attorneys.

In April 2013, OSHA launched an initi­ative to further protect temporary employees from workplace hazards using enforcement, outreach, and training. OSHA noted that employers have the responsibility to provide the appropriate safety and health training to all employees regarding hazards in their specific workplace.

To determine whether employers are meeting this requirement, OSHA directed all of its inspectors to ascertain whether the employer had temporary employees working on the site and whether any of the identified temporary employees were exposed to noncompliant conditions at that work site. The initiative further directed the inspectors to determine, using records reviews and interviews, whether those employees had received the required training in a language and vocabulary they understood, and had recognized the hazards associated with the task they were performing.

While contingent on the specific facts of each case, staffing agencies and host employers are normally considered jointly responsible for maintaining a safe work environment for temporary employees. This means they share a duty to ensure that basic training, hazard communications, and record-keeping requirements are maintained.

Guiding employers are a variety of federal and state laws and regulations. OSHA has also identified steps employers should take to ensure safety at their facilities, including training, recordkeeping, and developing assessments.​

OSHA recommends that the temporary staffing agency conduct an initial general safety and health assessment when evaluating workplaces. It also recommends that the agency 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 should ask the host employer to correct those hazards, inform the temporary employees 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.

For example, in June 2014 a temporary employee died from injuries sustained at an online retailer’s fulfillment center in Avenel, New Jersey, after he was trapped by a conveyor system and crushed while sorting packages. The contractor responsible for operating the facility was fined by OSHA, but so was the third-party logistics provider that had hired the temporary employee and three other temporary staffing agencies. The agencies were fined because they had failed to certify that a hazard assessment of the facility had been conducted before the temporary employee was assigned to work there.

“Temporary staffing agencies and host employers are jointly responsible for the safety and health of temporary employees. These employers must assess the work site to ensure that workers are adequately protected from potential haz­­ards,” said Patricia Jones, director of OSHA’s Avenel Area Office, in a press release on the incident. “It is essential that employers protect all workers from job hazards—both temporary and permanent workers.”

Similarly, the host employer should conduct an assessment to ensure it is providing a safe work environment for the temporary staffing agency’s em­ploy­ees. It should also identify and mitigate any safety and health hazards within the site where the temporary employee may be working. Additionally, the host employer should promptly mitigate any safety and health hazard identified by the temporary staffing agency’s initial and periodic health and safety assessments, as well as abate any safety, health, or environmental regulatory citation issued against the host employer’s work site.​

OSHA recommends that the temporary staffing agency provide basic safety training to its employees. This includes an overview of topics applicable to the work site where they are being assigned. The staffing agency should maintain written training records of all its employees and ensure that the host employer’s site-specific training adequately addresses the potential hazards that its temporary employees may be exposed to while working at the host work site.

For the host employer, OSHA recommends that it provide all state and federally mandated compliance training applicable to the work environment and processes. In addition, it recommends that the host employer provide site-specific safety training to temporary employees in a language they best understand and in accordance with government regulations. These regulations may specify the minimum training requirements and the timeframe in which they must be delivered.

Some of the OSHA training applicable to temporary employees includes implementing lockout procedures along with safe handling of chemicals and understanding the host company’s hazard communication program. Additional training includes informing temporary employees of site-specific emergency procedures, proper certification training on powered industrial vehicles, and training on the proper use of personal protective equipment at the site.​

If the host employer directs the temporary employee’s work, the host employer will be responsible for maintaining the OSHA 300 logs, which record the work-related injuries and illnesses of temporary employees. This means that 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 a temporary employee, and offer alternative work to restricted temporary employees as part of the return-to-work program.

The temporary staffing agency is normally responsible for providing medical management of injuries suffered at the host employer’s work site. The temporary staffing agency usually provides any associated injury benefits and coordinates the administration of workers’ compensation and any other issues associated with the employee’s injury.​
Other Considerations

In addition to the legal liability associated with OSHA, there are other legal considerations that temporary staffing agencies and host employers should recognize, including state laws and tort liability.

State laws. 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 safety for temporary agency employees. This includes recommending the passage of a Temporary Worker Right to Know law.

A similar law, enacted in Massachusetts in January 2013, requires employment agencies in the state to provide temporary employees with certain written information before the employees go to a new work site. This includes payment information, whether there is a strike or lockout at the job site, and whether the position requires special clothing, tools, licenses, or training. The law also prevents staffing agencies from providing false or misleading information to an applicant or employee, forcing temporary employees to go to an unwanted assignment, or sending temporary employees to a job assignment without a required license.

Liability. 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. However, more states are allowing injured employees, whether full-time or temporary, to opt out of the workers’ compensation system if they can show that willful or intentional conduct or gross negligence 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, usually in state court.

In addition, if the injury to the temporary employee results in the death of that employee, there is a much greater chance of having criminal liability brought against both the temporary staffing agency and the host employer. While OSHA does have criminal provisions in the act, only two or three cases are referred each year to the U.S. Department of Justice for criminal prosecution.

The more likely scenario for criminal liability against the temporary staffing agency or the host employer comes at the state level. Either the county district attorney or the state attorney general could bring an action for negligent homicide or another form of criminal liability against either the temporary staffing agency or the host employer.

In such cases, both the temporary staffing agency and the host employer should retain appropriate legal counsel during both the OSHA inspection and any local or state police enforcement investigation. This will help preserve all legal rights or defenses available to either one of the entities.

It seems likely 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. Also, temporary staffing agencies should recognize that joint liability may be placed on them and that they 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, the cochair of the firm’s workplace safety and catastrophe management practice group, former assistant secretary of labor for occupational safety and health, and the former chair of the U.S. Occupational Safety and Health Review Commission.