multi-employer worksite doctrine

By James L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  We had blogged previously that OSHA appealed an Administrative Law Judge (ALJ) ruling that severely limited OSHA’s Multi-Employer Worksite Doctrine and citation of a “controlling employer” general contractor. Acosta v. Hensel Phelps Constr. Co., No. 17-60543 (5th Cir. August 4, 2017).  The Fifth Circuit has now reversed the ALJ, and upheld OSHA’s Multi-Employer Worksite Doctrine.

In dramatic language, the U.S. Court of Appeals for the Fifth Circuit (governing federal law in Texas, Mississippi, and Louisiana) announced, that “thirty-seven years ago, this court, in a tort case, announced that ‘OSHA regulations protect only an employer’s own employees’.”  Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 711 (5th Cir. 1981).  That decision had endured despite the seismic shift brought about by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and of broader employer liability under the Act.  Acosta v Hensel Phelps Construction, No 17-60543 (5th Cir November 26, 2018).  OSHA’s Multi-Employer Worksite Doctrine enables the Agency to cite employers who are “controlling,” “exposing,” “creating,” or “correcting” safety hazards.  OSHA regularly cites general contractors as “controlling” employers with regard to hazards only faced by subcontractor employees.

In the instant appeal, the Court was asked whether OSHA has the authority, under either the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (the Act), or regulations, “to issue a citation to a general contractor at a multi-employer construction worksite who controls a hazardous condition at that worksite, even if the condition affects another employer’s employees.”  The Court concluded that OSHA does indeed have that authority under the Act.

Factually, an OSHA compliance officer conducted an inspection of the site and discovered three sub-contractor employees working at the base of an unprotected wall of evacuated soil.  The contractor’s and the subcontractor’s superintendents were present at the wall, with full views of the subcontractor’s employees working near the wall.  OSHA cited both contractor and the subcontractor for willfully violating 29 C.F.R. § 1926.652(a)(1) for allegedly “exposing employees to a cave-in hazard from an unprotected excavation at a construction site.”

The ALJ determined that the contractor met the requirements to be considered a “controlling employer” who had a duty under 29 U.S.C. § 651 et seq., to “act reasonably to prevent or detect and abate violations at the worksite even when the affected employees are those of another employer.”  However, because the citation arose within the jurisdiction of the Fifth Circuit, the ALJ found that “Fifth Circuit precedent foreclosed the citation” against the general contractor.  The ALJ relied on Melerine, Inc., 659 F.2d at 711, finding that “an employer at a worksite within the Fifth Circuit cannot be held in violation of the Act when the employees exposed to the hazard were employees of a different employer.”

Rather than follow Commission precedent and uphold the citation, the ALJ found that “where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case – even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Service, Docket No. 96-1719, 2000 WL 294514 (Mar. 16, 2000).  Therefore, the ALJ ruled that “applying 5th Circuit precedent, Respondent cannot be liable for a violation of the Act based solely upon a subcontractor’s employees’ exposure to the condition,”  and vacated the citation.

The Court here concluded that “an agency’s interpretation of its governing statute in an administrative adjudication ‘is as much an exercise of delegated lawmaking powers as is the Secretary’s promulgation of a workplace health and safety standard… The Multi-Employer Worksite Doctrine is an agency document that provides guidance to OSHA inspectors as to when it may be appropriate to cite a particular employer.”  The Secretary did not derive any authority from the Policy in issuing the citation to Hensel Phelps; “he relied on the statute itself and engaged in adjudication on the basis of that statutory authority.”  The Court found that the Secretary’s construction of the statute as granting authority to issue citations to controlling employers is a “reasonably defensible” one.

Accordingly, OSHA’s Multi-Employer Worksite Doctrine is now fully enforceable in the Fifth Circuit.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Workplace Policies and Handbooks Teams.

By Benjamin D. Briggs, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just reminded temporary staffing agencies and their clients (i.e., host employers) that they are jointly responsible for a  temporary employee’s safety and health in two new guidance documents relating to respiratory protection, noise exposure, and hearing conservation. Temporary agencies and host employers that use their services should review this guidance in carrying out their shared responsibility for temporary worker safety.

Nearly two years after the last bulletin, OSHA has just released two new temporary worker bulletins relating to respiratory protection, noise exposure, and hearing conservation.  See Temporary Worker Initiative (TWI) Bulletin No. 8 – Respiratory Protection, and Temporary Worker Initiative Bulletin No. 9 – Noise Exposure and hearing Conservation.

We have blogged previously about OSHA’s enforcement activities and guidance documents relating to temporary workers: “OSHA Releases Two More Temporary Worker Guidance Documents,” “New Guidance for ‘Recommended Practices’ to Protect Temporary Workers,” “OSHA Issues Memo to ‘Remind’ its Field Staff about Enforcement Policy on Temporary Workers,” and “OSHRC Reviews Employment Relationships.”

Under TWI Bulletin No. 8, OSHA notes that both the host employer and staffing agency are “jointly responsible to ensure workers wear appropriate respirators when required. While both the host and the staffing agency are responsible to ensure that the employee is properly protected in accordance with the standard, the employers may decide that a division of the responsibility may be appropriate. Neither the host nor the staffing agency can require workers to provide or pay for their own respiratory protection when it is required.”

Under TWI Bulletin No. 9, OSHA notes that both the host employer and staffing agency are jointly responsible for ensuring that “workers receive protection from hazardous noise levels when it is required under OSHA standards. Neither the host nor the staffing agency can require workers to provide or pay for their own hearing protection devices or require workers to purchase such devices as a condition of employment or placement. In addition, employees must be paid for the time spent receiving their audiograms, and the audiograms must be at no cost to the employee.”

Employer Takeaway

It is OSHA’s view that staffing agencies and host employers are jointly responsible for temporary workers’ safety and health. However, as the two newly published bulletin’s make clear, fulfilling the shared responsibility for temporary worker safety requires thoughtful coordination between staffing agencies and host employers. OSHA has previously acknowledged that a host employer may have more knowledge of the specific hazards associated with the host worksite, while the staffing agency has a more generalized safety responsibility to the employees. As a result, OSHA allows host employers and staffing agencies to divide training responsibilities based upon their respective knowledge of the hazards associated with the specific worksite. While host employers will typically have primary responsibility for training and communication regarding site specific hazards, staffing agencies must make reasonable inquiries to verify that the host employer is meeting these requirements.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Benjamin D. Briggs, Brent I. Clark, and Craig B. Simonsen

iStock_000060649530_MediumSeyfarth Synopsis: OSHA has just reminded temporary staffing agencies and their clients (i.e., host employers) that they are jointly responsible for temporary employee’s safety and health in two new guidance documents relating to safety and health training and hazard communications. Temporary agencies and host employers that use their services should heed this guidance in carrying out their shared responsibility for temporary worker safety.

Dr. David Michaels, the Administrator of the Occupational Safety and Health Administration, has reinforced OSHA’s position that “host employers need to treat temporary workers as they treat existing employees. Temporary staffing agencies and host employers share control over the employee, and are therefore jointly responsible for temp employee’s safety and health. It is essential that both employers comply with all relevant OSHA requirements.” This is a serious issue and one that can be difficult with levels and layers of owners, contractors, subcontractors, and temporary agencies providing and supervising site staff.

We have blogged previously about OSHA’s active enforcement activities and guidance documents relating to this important topic: “New Guidance for ‘Recommended Practices’ to Protect Temporary Workers,” “OSHA Issues Memo to ‘Remind’ its Field Staff about Enforcement Policy on Temporary Workers,” and “OSHRC Reviews Employment Relationships.”

To assist employers in meeting this shared responsibility, OSHA has just released two more guidance documents relating to safety and health training and hazard communication. Temporary Worker Initiative (TWI) Bulletin No. 4 – Safety and Health Training, Temporary Worker Initiative (TWI) Bulletin No. 5 – Hazard Communication. Under its hazard communications guidance, OSHA states that both the host employer and the staffing agency share responsibility to ensure temporary workers are informed and trained regarding exposure to hazardous chemicals.  Similarly, under its safety and health training bulletin, OSHA emphasizes the shared responsibility host employers and temporary agencies have for providing proper training.  OSHA also confirms that the party who supervises the temporary employee’s work must comply with OSHA’s injury and illness recordkeeping and reporting requirements for temporary workers.

Other highlights from OSHA’s most recent guidance include the following:

  • OSHA recommends that the staffing agency and host employer contractually specify the division of responsibilities to ensure alignment between the staffing agency and host employer, but notes that neither can contract away compliance obligations.
  • In most cases, the host employer is responsible for site-specific training and hazard communications; whereas the staffing agency is responsible for generic safety and health training (including hazard communications training).
  • Although the host employer is usually responsible for site-specific training because it is often in the best position to provide such training, the staffing agency is responsible for ensuring that employees receive proper site-specific training, and must have a reasonable basis for believing that the host employer’s training adequately addresses the potential hazards to which employees will be exposed at the host employer’s worksite.
  • While the staffing agency may have a representative at the host employer’s worksite, the presence of that representative does not transfer responsibilities for site-specific training to the staffing agency.
  • Training provided to temporary workers should be identical or equivalent to the training given to the host employers’ own employees.

Staffing agencies and host employers need to understand OSHA’s view that they are jointly responsible for temporary workers’ safety and health. As this newly published guidance makes clear, fulfilling this shared responsibility for temporary worker safety requires thoughtful coordination between staffing agencies and host employers.  While host employers will typically have primary responsibility for training and communication regarding site specific hazards, staffing agencies must make reasonable inquiries to verify that the host employer is meeting these requirements.

By Brent I. Clark, Meagan Newman, and Craig B. Simonsen

The Occupational Safety and Health Administration and the National Institute for Occupational Safety and Health released yesterday their “new” guidance for “Recommended Practices” to protect temporary workers’ safety and health, for staffing agencies and host employers. DHHS No. 2014-139 (August 25, 2014).

This new guidance comes on the heels of OSHA’s Memorandum to Regional Administrators on OSHA’s “Policy Background on the Temporary Worker Initiative.” OSHA Administrator Dr. David Michaels said about the Recommended Practices guidance that “an employer’s commitment to the safety of temporary workers should not mirror these workers’ temporary status.” “Whether temporary or permanent, all workers always have a right to a safe and healthy workplace. Staffing agencies and the host employers are joint employers of temporary workers and both are responsible for providing and maintaining safe working conditions.” Emphasis added.

In a virtual shopping list, these are the Recommended Practices as provided in the new guidance:

  • Evaluate the Host Employer’s Worksite.
  • Train Agency Staff to Recognize Safety and Health Hazards.
  • Ensure the Employer Meets or Exceeds the Other Employer’s Standards.
  • Assign Occupational Safety and Health Responsibilities and Define the Scope of Work in the Contract.
  • Injury and Illness Tracking.
  • Conduct Safety and Health Training and New Project Orientation.
  • Injury and Illness Prevention Program.
  • Maintain Contact with Workers.

In instructions on these listed practices the Agencies specify that staffing agencies need not become “experts on specific workplace hazards.” However at the same time staffing agencies rather should determine “what conditions exist at the worksite, what hazards may be encountered, and how to best ensure protection for the temporary workers.”

When feasible, the guidance declares, the agency-host contract should clearly state which employer is responsible for specific safety and health duties. “The contract should clearly document the responsibilities to encourage proper implementation of all pertinent safety and health protections for workers.”

Note that on injury and illness tracking the guidance states that “both the host employer and staffing agency should track and where possible, investigate the cause of workplace injuries.” This guidance is given even though OSHA only requires that injury and illness records be kept by the employer who is providing “day-to-day supervision, i.e., controlling the means and manner of the temporary employees’ work.”

In addition, the guidance indicates that “host employers should provide temporary workers with safety training that is identical or equivalent to that provided to the host employers’ own employees performing the same or similar work.”

While the Agencies indicate that “unless otherwise legally required, these recommendations are for the purpose of guidance and in some cases represent best practices,” host employers and staffing agencies may be certain that this new guidance will be the yard stick that OSHA inspectors use to evaluate their policies, training programs, and work sites.

By James L. Curtis and Craig B. Simonsen

Thomas Galassi, the Director of OSHA’s Directorate of Enforcement Programs, recently issued a Memorandum to Regional Administrators on OSHA’s “Policy Background on the Temporary Worker Initiative.” It provides a good lesson from the Agency’s perspective.

We had blogged previously about OSHA’s national emphasis on temporary workers. For instance, Administrator David Michaels published an op-ed piece on the topic. This was followed by the Agency’s publication of its first in a series of Temporary Worker Initiative (TWI) Guidance Documents, this one on injury and illness recordkeeping requirements. OSHA had announced the temporary worker initiative in a memorandum last year. We had published a detailed analysis of the initiative in this article on “All Employees Are Created Equal: OSHA’s New Initiative on Temporary Employees.”

The Galassi Memorandum explains that for the purposes of the TWI, “temporary workers” are workers hired and paid by a “staffing agency,” that are supplied to a “host employer” to perform work on a temporary basis. In general, “OSHA will consider the staffing agency and host employer to be ‘joint employers’ of the worker.” Galassi notes that “joint employment is a legal concept recognizing 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 with statutory and regulatory requirements. For example, the staffing agency often controls a worker’s paycheck and selects the host employer location where the worker will be sent. The host employer, in turn, assigns the particular work to be done each day and controls operations in the physical workplace.”

Identifying Employer Responsibilities

For employers, this is the important bit.  Galassi spells out that “OSHA compliance officers should review any written contract(s) between the staffing agency and the host employer and determine if it addresses responsibilities for employee safety and health. It should be understood, however, that the contract’s allocation of responsibilities may not discharge either party’s obligations under the Act.”

The extent of the obligations each employer has will vary depending on workplace conditions and may be clarified by their agreement or contract. Their duties will sometimes overlap. The staffing agency or the host may be particularly well suited to ensure compliance with a particular requirement, and may assume primary responsibility for it. For example, staffing agencies might provide general safety and health training applicable to many different occupational settings, while host employers provide specific training tailored to the particular hazards at their workplaces. If the staffing agency has a long-term, continuing relationship with the temporary worker, it may be best positioned to comply with requirements such as audiometric testing or medical surveillance. The host employer, in turn, would be the primary party responsible for complying with workplace-specific standards relating to machine guarding, exposure to noise or toxic substances, and other workplace-specific safety and health requirements.

[A]lthough the host employer typically has primary responsibility for determining the hazards in their workplace and complying with worksite-specific requirements, the staffing agency also has a duty. Staffing agencies must ensure they are not sending workers to workplaces with hazards from which they are not protected or on which they have not been trained.

Galassi summarizes Regional responsibilities in these cases when an investigation reveals a temporary worker allegedly exposed to a hazardous condition, if the worker is considered employed by both a staffing agency and a host employer. OSHA will consider issuing citations to either or both of the employers, depending on the specific facts of the case. “This will require Area Offices to make a careful assessment of whether both employers have fulfilled their respective compliance responsibilities in each individual case. These inspections are considered high priority and early consultation between OSHA and [the Secretary of Labor] is essential to facilitate case development.”

Host employers and staffing agencies should take heed. The TWI will be another tool being employed by the Agency in its mission of imposing additional obligations on employers to ensure that all employees, temporary or full time, are provided adequate health and safety training and protected from unsafe working conditions. Specifically, as noted above, employers should study carefully its agreements with staffing agencies to ensure responsibilities are well spelled out. In addition, host employers should more closely scrutinize their use of temporary employees and whether those employees are receiving sufficient training and protection. As we have noted from the many facets of this OSHA national emphasis, the attention of federal and state agencies is on this issue and employers should be taking steps to ensure that all employees, whether they are full time or temporary, are aware of and properly protected from workplace hazards.

By Brent I. Clark and Craig B. Simonsen

The OSHA National Advisory Committee Workgroup will meet to continue its discussion of issues relating to the protection of temporary workers.

The Workgroup will be discussing issues that include perceived gaps in workplace protection for temporary workers, differences between temporary workers and contract workers, and joint responsibility of host employers and staffing agencies. The purpose of the meeting is to enable and equip the Workgroup to develop recommendations for the National Advisory Committee to consider in OSHA’s ongoing regulatory mission.

We had blogged previously about OSHA’s recent emphasis on temporary workers. For instance, Administrator David Michaels published an op-ed piece on the topic. This was followed by the Agency’s publication of its first in a series of “Temporary Worker Initiative Guidance Documents,” this one on injury and illness recordkeeping requirements. OSHA had announced the temporary worker initiative in a memorandum last year. See our detailed analysis of the initiative in this article on “All Employees Are Created Equal: OSHA’s New Initiative on Temporary Employees.”

All staffing agencies and employers utilizing temporary workers should take heed. The temporary employee initiative will be another tool employed by the Agency in its mission of imposing additional obligations on host employers to ensure that all employees, temporary or full time, are provided adequate health and safety training and protected from unsafe working conditions. Thus, host employers should more closely scrutinize their use of temporary employees and whether those employees are receiving sufficient training and protection. The attention of federal and state agencies and lawmakers is on this issue and employers should be taking steps to ensure that all employees, whether they are full time or temporary, are aware of and properly protected from workplace hazards.

The OSHA Workgroup meeting will take place on July 28, 2014, in Washington, DC. The meeting is open to the public.

By Brent I. Clark, Meagan Newman, and Craig B. Simonsen

OSHA has just announced its first in a series of guidance documents concerning compliance with safety and health requirements when temporary workers are employed under joint (or dual) employment of a staffing agency and a host employer. TWI Bulletin No. 1.

We had blogged previously about Administrator David Michaels recent op-ed piece on this topic. Michaels drew a direct connection between the length of time on the job and the risk of death doing that job: “we have known for a century that new workers are at increased risk for occupational injury and fatality, and that higher risk is due to a lack of safety training and experience at that work site.”

Earlier last year an OSHA memorandum on the topic stated that “inspections have indicated problems where temporary workers have not been trained and were not protected from serious workplace hazards due to lack of personal protective equipment when working with hazardous chemicals and lack of lockout/tagout protections, among others.”

Now in this Bulletin OSHA focuses on the scenario where a staffing agency supplies temporary workers to a business. Conceptually both employers may be responsible to some degree for the conditions of employment and for complying with the law. The Bulletin seeks to clarify how to identify which employer (the staffing agency or the host employer) is responsible for recording work-related injuries and illnesses of temporary workers on the OSHA 300 log.

In summary, OSHA concludes that “in most cases, the host employer is the one responsible for recording the injuries and illnesses of temporary workers.” In clarifies that “as long as the host employer maintains day-to-day supervision over the worker, the host employer is responsible for recording injuries and illnesses.”

In our view, the conclusion drawn by OSHA may not, in most cases, be quite so clear. Employers that do contract for and use temporary workers at their worksites should be encouraged by this Bulletin to consider carefully the employment relationships they have created — and consider ahead of time who it believes will be responsible for recording OSHA log events.

By Brent I. Clark and Meagan Newman

In a recent op-ed OSHA’s top administrator, David Michaels, makes clear that OSHA’s temporary worker focus, announced earlier this year, is here to stay.

We blogged earlier this year when the initiative was announced. In the op-ed Michaels draws a direct connection between the length of time on the job and the risk of death doing that job:

“We have known for a century that new workers are at increased risk for occupational injury and fatality, and that higher risk is due to a lack of safety training and experience at that work site.”

Michaels posits that companies hire temporary workers to save costs and skimp on safety training in an effort to reduce expenses:

“Staffing agencies and their client employers who host temporary workers share the legal obligation to provide workplaces free of recognized hazards. This includes providing required safety training in a language and vocabulary workers can understand. Cutting corners on safety can result in both tragedy and stiff federal penalties.”

Employers who utilize temporary employees, and staffing agency employers, should heed Michaels’ warning. OSHA inspectors have been instructed to determine, in every inspection, if every temporary worker on the site has received the safety training and protections required by law for the job. If they have not, OSHA will hold both employers and staffing agencies accountable.

By Mark A. Lies II, Meagan Newman, and Kerry Mohan

Citing recent reports of deaths of temporary employees, many of which have occurred on the first day of the job, OSHA issued a memorandum this week to its Regional Administrators outlining new measures to protect the health and safety of temporary employees.  The agency is making a concerted effort using enforcement, outreach and training to assure that temporary workers are protected from workplace hazards.

The April 29, 2013 memorandum instructs compliance officers to investigate temporary worker issues during their inspections and states that recent “inspections have indicated problems where temporary workers have not been trained and were not protected from serious workplace hazards due to lack of personal protective equipment when working with hazardous chemicals and lack of lockout/tagout protections, among others.”  The memorandum also directs compliance officers to document the name of the temporary workers’ staffing agency, the agency’s location, and the supervising structure under which the temporary workers are reporting (i.e., the extent to which the temporary workers are being supervised on a day-to-day basis either by the host employer or the staffing agency).

The memorandum also announces the addition of a new OIS code for temporary workers which will enable OSHA to better track temporary worker issues and exposures.

Focus on temporary workers has been increasing in recent years and in one case a state legislature has taken matters in to its own hands.  In Massachusetts, House Bill 4304, “An Act Establishing a Temporary Workers Right to Know” was signed in to law last year (taking effect in January of this year). It requires temporary agencies to provide employees with specific start and end times and a detailed job description, including clothing, equipment, training, and license requirements. It must also specify any meal or transportation provisions and related costs to be charged to the employee.

All staffing agencies and employers utilizing temporary workers should take heed.  The attention of federal and state agencies and lawmakers is on this issue and employers should be taking steps to ensure that all employees, whether they are full time or temporary, are aware of and properly protected from workplace hazards.

For more information and further recommendations, see this article.

By Brent I. Clark and Meagan Newman

The Bureau of Labor Statistics reports that more than 2.5 million temporary workers were on U.S. payrolls last month.  This figure does not include farm workers.  While employers see advantages to using temp workers they must also be cognizant of the potential liability for workplace safety and health of those workers.

With very few exceptions, employers will be held responsible for violations of OSHA standards and recognized hazards to which temp employees are exposed.  Also, in most cases host or client employers must also include the recordable injuries and illnesses of temporary workers on their OSHA 300 logs as well as complete the 301 incident reports.

Failure to do so can result in significant penalties.  Earlier this year an employer in Pennsylvania was ordered to pay over $200,000 in penalties for failure to include temp worker injuries on its log.