Richard D. Alaniz is senior partner at Alaniz Schraeder Linker Farris Mayes, LLP, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for more than 30 years. Alaniz is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Alaniz can be reached at 281-833-2200 or firstname.lastname@example.org.
On his first day on the job as a temporary worker for Bacardi Bottling Corp, Lawrence Daquan “Day” Davis died after being crushed by a palletizer machine. The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) eventually cited the company with 12 alleged safety violations relating to the death of Davis. When announcing the citations, the agency also said it was proposing nearly $200,000 in penalties.
That accident, just one in a string of on-the-job temp fatalities, has raised concerns among government regulators. An OSHA memo from April 29, 2013, announced new scrutiny on training and safety practices for temporary workers. In the memo, OSHA cited Davis’s death as an example of employer lapses. The memo calls on the agency’s regional administrators to direct field inspectors to assess whether employers who use temp workers are complying with their responsibilities under the Occupational Safety and Health Act of 1970. Inspectors must also determine whether temps understand both the language and the vocabulary of the training they receive. As OSHA ramps up the scrutiny of temp workers, employers must understand and comply with their duties regarding training and safety, before accidents occur.
The Rise of Temporary Workers
The growing employment of temps has provided benefits to workers and employers across the U.S. According to data from the U.S. Bureau of Labor Statistics, 2.06 percent of the U.S. workforce consisted of temporary workers in March—an all-time high. Multiple factors have led to the rise of temporary workers. Many employees desire flexibility in their jobs, while companies wish to remain nimble in an uncertain economy. Moreover, many firms desire to employ fewer than 50 full-time employees in order to avoid fines and coverage requirements for larger businesses under the Affordable Care Act.
OSHA’s New Focus
With the increase in employed temps, the number of on-the-job deaths of temp workers continues to rise. OSHA has become increasingly concerned that some employers may be using temporary workers to duck their compliance obligations. The agency has expressed concern that temps at some companies are being put in the most dangerous jobs and that they are not being given adequate safety and health training. OSHA’s website states that in some situations, “temporary workers are more vulnerable to workplace safety and health hazards and retaliation than workers in traditional employment relationships.”
As part of their investigations, OSHA field inspectors must determine whether employees are temporary workers and, if so, if they are exposed to conditions that could create a safety violation. OSHA agents use records, reviews and interviews to evaluate whether temps have received the required training in languages and terms they can understand. According to OSHA, recent inspections have identified situations in which temps were not provided with lockout/tagout protections, were not adequately trained or had not received necessary personal protective equipment when working with hazardous chemicals, among other safety violations.
As part of their inspections, OSHA agents also must list the name of the temps’ staffing agency, the agency’s location and the structure under which the temporary workers are reporting.
What Employers Need to Know
In light of OSHA’s new emphasis on the safety of temps, employers must take a fresh look at their employment of temps, relationships with staffing agencies and how they train all employees. When current practices are inadequate, companies should follow these four steps to quickly augment and update them.
1. Work closely with HR and legal. The new emphasis calls for a multi-departmental response. When employers use staffing agencies for temp employees, it’s often unclear who bears responsibility for training and record-keeping. Companies should work closely with HR, in-house counsel and outside attorneys to clarify job descriptions, supervisory authority, training and record-keeping for temps.
2. Review training methods. Employers should take this opportunity to review their training manuals and procedures for temps to ensure that they are current and comply with all the appropriate rules and regulations. Employers should consider potential hazards of specific jobs and sites.
3. Understand training materials. OSHA has explicitly said that temps must be able to understand training materials, in terms of both language and vocabulary. This may require translating materials into the native languages and dialects of temp workers.
4. Check staffing agreements. Employers must carefully review their agreements with staffing agencies to ensure that the agreement provides for indemnification for any safety or health violations created by the temporary employee. OSHA also recommends that the agencies and employers outline their respective responsibilities for compliance in their contract. This will avoid “confusion as to the employer’s obligations,” according to the agency’s website. Regardless of what the contract says, however, employers should be prepared to fall under the scrutiny of OSHA if a temporary worker is injured or killed on the job.
Under federal law, employers are required to provide a worksite “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
With its latest emphasis, OSHA has put employers on notice that they must treat temporary workers like permanent employees in regard to training, safety and health protections.