The Occupational Safety and Health Review Commission (OSHRC) recently reviewed an employment relationship between a company and the workers allegedly exposed to cited conditions, in Secretary v. Southern Scrap Materials Co., Inc., OSHRC Docket No. 94-3393 (September 28, 2011), and reaffirmed a long line of cases concerning a host employer’s responsibilities for temporary employees.
In this case Southern Scrap Materials Co., Inc. (Southern Scrap), disputed the Occupational Safety and Health Administration’s (OSHA) allegation that certain individuals who worked at the facility were its employees. In particular, Southern Scrap contended that “W.H.”, who was referred to work at Southern Scrap through a temporary employment agency, was not its “direct employee.” To resolve this issue, the OSHRC applied the common-law agency doctrine enunciated in Nationwide Mutual Insurance Company v. Darden, 503 U.S. 318 (1992), and Sharon & Walter Constr., Inc., 23 BNA OSHC 1286 (November 18, 2010).
Citing to Darden, OSRHC indicated that the employment relationship doctrine focuses on “the hiring party‘s right to control the manner and means by which the product is accomplished.” Factors used in this analysis include:
“The skill required [for the job]; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party‘s discretion over when and how long to work; the method of payment; the hired party‘s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.”
Darden, 503 U.S. at 323-324.
In the context of the Occupational Safety and Health Act, the OSHRC indicated that in this analysis the control exercised over a worker is the “principal guidepost” to determining the existence of an employment relationship. Froedtert Mem’l Lutheran Hosp., Inc., 20 BNA OSHC 1500 (January 15, 2004).
In Southern Scrap, the OSHRC concluded that W.H. had an employment relationship with Southern Scrap. Evidence showed that Southern Scrap controlled “the manner and means” of their daily work. Workers testified that Southern Scrap provided them with safety belts, and required that they purchase certain personal protective equipment from Southern Scrap. In addition, according to a member of Southern Scrap‘s management team, Southern Scrap also trained the temporary personnel on how to perform the burning operations, on the hazard communication and respiratory protection programs, and on lockout/tagout procedures.
Companies having temporary workers from staffing agencies need to insure that they evaluate their responsibilities to treat temporary employees as “their own” for purposes of OSHA compliance.