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Joint Employment Changes at DOL May Affect Safety

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By Adele L. Abrams, Esq., CMSP, ASSE's Federal Representative

On June 17, 2017, Secretary of Labor Alexander Acosta announced the withdrawal of the U.S. Department of Labor’s (DOL) 2015 and 2016 informal guidance on joint employment and independent contractors. It appears that this guidance has already been removed from the DOL website, although some related fact sheets remain. 

The effect on OSH is unknown at this early stage. For now, OSHA continues to promote its Temporary Worker Safety webpage and to stress the following:

While the extent of responsibility under the law of staffing agencies and host employers is dependent on the specific facts of each case, staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers, including, for example, ensuring that OSHA's training, hazard communication and recordkeeping requirements are fulfilled. . . . Host employers must treat temporary workers like any other workers in terms of training and safety and health protections.

Moving forward, federal safety agencies will likely look to harmonize with other DOL branches (as well as considering the Internal Revenue Services’ “economic realities test”) when determining their enforcement posture on joint employment in an OSHA/MSHA matter. The revised analytical criteria will affect the ultimate determination as to whether a worker is an “employee” or an “independent contractor," and perhaps adversely affect these workers' safety and health by affording them a lesser level of protection.

Background

For many years, DOL viewed joint employment as existing “when an employee is employed by two (or more) employers such that the employers are responsible, both individually and jointly, to the employee for compliance with a statute.” Joint employment covered by the now-withdrawn guidance is common in the construction, agricultural, janitorial, warehousing/logistics, staffing and hospitality industries.

DOL says that removal of the 2015-16 guidance does not change the legal responsibilities of employers under the Fair Labor Standards Act (which governs overtime pay, minimum wage and child labor restrictions) and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the agency’s codified regulations and in case law interpreting the statutes.

However, this guidance rescission will affect how liability can be extended for DOL violations of many types to a host employer for actions of subcontractors or other contingent and temporary workers, from sources such as staffing agencies. An example of joint employer status under the rescinded guidance would be where one employer provides labor to another employer and the workers are economically dependent on both employers. The other main scenario is where the employee has two (or more) technically separate but related or associated employers (e.g., an arrangement to share the worker’s services, share control of the worker, or one employer acts in the interest of the other in relation to the worker). 

A determination made under the revised DOL policy that an entity is not a “joint employer” will affect whether a company can be cited for violations of OSHA’s General Duty Clause, [Section 5(a)(1) of the OSH Act of 1970]. The General Duty Clause is used as a gap filler, to address recognized hazards that could kill or seriously injure employees in situations where OSHA lacks a codified, applicable standard. Examples include its use to prevent hazards ranging from ergonomic risks to workplace violence to infectious diseases such as Ebola and pandemic flu.

By law, an employer can only be cited for General Duty Clause violations if its own employee is exposed to the hazard, rather than workers employed by third parties or working as contractors. Therefore, the newly announced limitations on joint employer status will affect OSHA’s enforcement powers, and will also potentially affect which entity (if any) will record and report injuries, illnesses and fatalities to OSHA and maintain the requisite logs for temporary and contingent worker incidents.

Despite this policy change, remember that as the controlling employer, the host employer will still have legal responsibility (other than under the General Duty Clause) for ensuring that all employers on its work site provide a safe and healthful work environment for their respective workers and for others exposed to their hazardous activities on the work site. All employers must still comply with applicable OSHA, MSHA and/or state safety and health laws.

Adele L. Abrams, Esq., CMSP, is president of the Law Office of Adele L. Abrams P.C., and ASSE’s federal representative. Abrams is co-author of three ASSE books: The Safety Professional’s Handbook, Construction Safety Management and Engineering and Consultants Business Development Guide

 

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