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The Occupational Safety and Health Administration (OSHA) generally considers host employers and staffing agencies to be "joint employers" under its Temporary Worker Initiative (TWI), but host employers frequently receive more citations and steeper fines for safety violations, according to a survey by law firm Haynes and Boone.
Matthew Deffebach, an attorney with the firm's Houston office, said he expects OSHA to keep issuing citations under the TWI in 2017.
"A lot of initiatives will continue for a while, even with the new administration," he said in an interview with SHRM Online. "There will be changes with top-level folks, but you're not going to see a lot of turnover with the investigators in the trenches."
OSHA started the TWI in April 2013 with the goal of preventing work-related injuries and illnesses for temporary workers.
The agency said it had received several reports about temporary workers who suffered fatal injuries that happened at least in part because the employer failed to provide safety training or address workplace hazards. The TWI was launched to remind employers of their responsibilities to protect temporary staff from such workplace hazards.
OSHA investigators may issue citations to the host employer, the staffing agency or both. "In a majority of TWI cases, both the host employer and the staffing agency were cited, but the host employer was cited for substantially more violations," the Haynes and Boone survey found.
For example, the survey noted, in 2016 Ohio auto parts manufacturer Sunfield Inc. was cited for 57 safety violations and assessed a proposed $3.4 million fine. On the other hand, the three staffing agencies that provided the workers were each fined $7,000.
"Most of the violations involve lack of machine safety procedures which expose workers to amputation, lacerations and other injuries," OSHA said in a related press statement. Many of the citations were for egregious willful violations, the agency said.
OSHA's view that host employers and staffing agencies are joint employers for TWI purposes creates challenges for the workplace, Deffebach said.
Businesses usually want to avoid treating temporary workers like employees so they aren't subjected to employer obligations under wage-and-hour and other labor-related laws.
OSHA, however, has taken the position that both hosts and agencies are responsible for compliance efforts because, while the staffing agency supplies the paychecks, the host employer assigns the work and controls operations in the physical workplace.
This is a tough issue for employers because most are using temporary staff when they have a surge in workload so that they are removed from some of the same obligations they have for their employees, Deffebach said.
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"It puts the staffing model on its head" if the host may be held accountable at a higher level than the staffing agency even though the reason for using the agency is to shift some of the hiring, training and onboarding process to the agency, he said.
When a host employer is engaging temporary workers in safety-sensitive positions, there ought to be more due diligence, Deffebach said. For example, rather than just relying on the staffing agency to provide safety training, the host employer should verify that the worker can operate the relevant machine or type of forklift.
HR professionals can help supervisors who are interfacing with temporary workers to develop some training and assessment procedures, even if the training isn't as detailed as it is for employees.
If there is something unique about the particular job or equipment, temporary workers need to be aware of it, Deffebach noted.
If a temporary worker's performance isn't meeting expectations, the staffing agency should be notified. Finding a replacement may be necessary to avoid a catastrophe, he said.
Additionally, HR professionals may want to include detailed language in their master service agreement about required safety certifications and specific training that certain workers must have.
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