Not Just a "Temporary" Employee

There is a shift occurring in employment and job placement in America. Jobs created since the recession ended in 2009 have been centered around bringing in workers on a temporary assignment basis. This makes sense; it saves on benefits and gives management the flexibility to manage staffing without layoffs, etc.

This new dynamic has created a need in how the Occupational Safety and Health Administration (OSHA) looks at protecting the employee and who is responsible for their safety while working as a “guest employee” at your workplace.

Are you prepared for updates to your P&Ps and supervisory needs? Learn what is required by OSHA, revisions needed to contracts with employment agencies, insurance and risk management considerations, and proper supervision and protection of personnel working in your organization.

According to the Bureau of Labor Statistics (BLS), in 2011 there were 2.8 million-plus temporary workers in the United States, about 2.3 percent of the workforce that year. “Temps” are classified by the BLS under temporary help services. During the past four years, 15 percent of new jobs created were in the temporary help services sector.

Temp jobs accounted for the whopping 116 percent of job growth in Memphis, TN (that means that one sector added more jobs than all other industries together); 66 percent in Birmingham, AL; 65 percent in Cincinnati; 58 percent in Hartford, CT; 51 percent in Milwaukee; 46 percent in Kansas City; MO; and 40 percent or more in Cleveland, Chicago and Philadelphia.

Doesn’t Matter Who Writes the Checks

Who is the temp actually working for while at your establishment? In most cases, the “host” employer is paying the service that provided the workers, so the temp draws a paycheck from the temp service, not the work site. Many employers mistakenly, or conveniently, conclude that since the temp is technically being paid by someone else, the temp works for someone else or is a contractor. This is not so for OSHA purposes.

Employees are not defined by OSHA based on who pays them. What matters is whether there is an employer-employee relationship between the parties. Criteria OSHA uses to determine that relationship includes:

  • The nature and degree of control the hiring party asserts over the manner in which the work is done.
  • The degree of skill and independent judgment the temporary worker is expected to apply.
  • The extent to which the services provided are an integral part of the employer’s business.
  • The right of the employer to assign new tasks to the worker.
  • Control over when the work is performed and how long it takes.

So, if you have temporary workers in your company and you are telling them how, when and where to do their job, and the work they do is integral to your business, under OSHA they are your employees. If they get hurt or need training, personal protective gear, hearing exams, medical surveillance or air monitoring, they must receive the same treatment as your regular employees.

Recording injuries to temporary workers on your property and under your supervision are to be included in your OSHA 300 log for all employees, including “recordable injuries and illnesses that occur to employees who are not on your payroll if you supervise these employees on a day-to-day basis.” You can’t provide protective equipment for your employees and charge your temps for it or make them provide their own. You can’t deny temps Material Safety Data Sheet (MSDS) information or copies of air sampling results.

In recent months, 051-IA has received a series of reports about temporary workers suffering fatal injuries, many during their first days on a job. OSHA has issued citations when the employer failed to provide adequate protections, including safety training.

Training may be the most commonly violated requirement of all. Every OSHA standard that requires training requires the training before a worker is exposed to the hazard. The problem for temporary workers is the often short notice and transient nature of many of the jobs. Finding a temp who has documented training on hazardous waste operations and emergency response awareness, hazard communication, personal protective equipment, forklift operation and hearing conservation is certainly a logistical challenge.

However, it does not change the requirement for all of this and more to be in place before workers are exposed to workplace hazards. Additionally, OSHA wants to ensure that temporary workers receive required training in a language and vocabulary they can understand. These provisions underscore the duty of employers to protect all workers from hazards.

In addition, OSHA has begun working with the American Staffing Association, and employers that use staffing agencies, to promote best practices ensuring that temporary workers are protected from job hazards.

Key areas of change that affect you include:

  • Revisions to the OSHA regulations, purpose and objectives;
  • Reasonable care and informed compliance;
  • Role of employer, agency; supervisors, workers, compliance auditors;
  • Focused assessment requirements;
  • Training responsibility (contract language and pre-engagement performance can put the burden of general training back on the agency’s responsibility);
  • Record-keeping requirement;
  • Standard operating procedures;
  • Penalties;
  • Control of documents/control of records; and
  • Best practices.

This issue is not limited to traditional manufacturing sites. This applies to any place covered by the Occupational Safety and Health Act.

The question you now need to be asking yourself is: Do my “non-employees” pass the relationship test?

Our Professional Services Group can help provided the audits and training needed to help ensure compliance. Call 800-355-8267 or email us today for more information.