Manufacturers are increasingly using temporary employees (“temps”) to supplement the work force.  The Bureau of Labor Statistics reports that the temporary workforce has increased exponentially.  Manufacturers  previously used temps as a stopgap for labor, but are now routinely using temps to supplement the workforce.  Our 360 post this week touches on the issues associated with using temps:

Pam:

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.

— David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health

I almost stopped right there, as that pretty much sums up OSHA’s perspective on temporary workers. However, here are a few other thoughts:

  • OSHA’s so serious about protecting temporary workers, it has begun a Temporary  Workers Initiative with resources for employers and employees.
  • The best way for a host employer to protect itself is to make sure the agreement with the temporary staffing agency clearly lays out each parties’ responsibilities for training and ensuring compliance with OSHA requirements.
  • A good example of the different roles of hosts and agencies – the agency should provide general training, but the host is best positioned to provide location specific training, i.e., specific chemicals used.
  • Host employers are required to record injuries and illnesses for temporary workers if they supervise the temp workers on a “day-to-day basis”.  29 CFR 1904.31(a). OSHA’s issued a bulletin on this topic.

Jeff:

From a corporate compliance/litigation perspective, many of the issues identified by Pam come into play.  For instance, when a temporary worker gets hurt on the job, it is not uncommon for the leasing agency to put the onus on the manufacturer to investigate and reach immediate conclusions.  Under those circumstances, the manufacturer not only has to coordinate and manage its response to OSHA, but also determine how to respond (or not) to the leasing agency.  At this stage, if not earlier, it is essential to bring in legal counsel to advise the company because statements made to leasing agencies are almost certainly not protected by attorney-client or work product privileges.  Ultimately, as in most things that end in litigation, the business partnerships that may exist with the leasing agency may become strained, and therefore, it is important to have carefully thought through these issues before hiring your first temporary worker.

Nicole:

How exactly a manufacturer uses temporary workers is significant to the assessment of classification and other employment law risks.  Worker status determinations are not based on convenience or cost savings to the employer.  Instead, the determination is based on applying tests and factors cited in statutes, case law, and regulations to the facts and circumstances of the particular job. The existence and degree of each factor is a question of fact.  There is no single factor that necessarily tips the analysis.  Indeed, one of the more difficult aspects of the employee misclassification issue concerns the absence of a uniform standard to determine which individuals actually constitute employees for purposes of a joint employer analysis.

There are numerous labor, employment and benefits laws that come into play, including federal and state wage and hour laws, federal and state anti-discrimination laws, federal and state revenue codes, Employment Retirement Security Act, and the Affordable Care Act.  The National Labor Relations Act may also be part of this analysis if the temporary employees are not truly “temporary”.

In assessing these risks, here are some additional considerations:

  • Analyze the temporary nature of each position and how such position is used as part of the facility’s overall workforce.
  • Analyze whether the manufacturer has the right to control and direct the temporary worker; (2) whether it has financial control over the temporary worker; and (3) the relationship between the manufacturer and the temporary worker.
  • Review policies, procedures, and benefits plan documents to ensure temporary employees are included and/or not included, as appropriate.
  • Designate a single point of contact for coordination with vendors with regard to the operational process and on-site training.
  • Review/analyze contracts with vendors to designate responsibility for employer issues, such as payroll taxes, benefits, training and complaints.

 

 

 

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Pamela Elkow

I’m a partner in Robinson+Cole’s Environmental and Utilities Practice Group. I’ve been practicing law with a focus on environmental and health and safety issues for over 20 years. I work with a wide variety of clients, ranging from Fortune 50 companies and large…

I’m a partner in Robinson+Cole’s Environmental and Utilities Practice Group. I’ve been practicing law with a focus on environmental and health and safety issues for over 20 years. I work with a wide variety of clients, ranging from Fortune 50 companies and large institutions such as universities, to small, closely-held businesses and municipalities. Here’s the link to my full and official bio.

Many of my clients are manufacturers with ongoing environmental, health and safety issues associated with their business operations. I advise them on day-to-day compliance and permitting issues, work with them to compile or review health and safety manuals, and defend them against enforcement actions resulting from allegations of violations of environmental or occupational health and safety regulations. I see myself as part of the client team – my task is not just to raise issues and liabilities, but to work with the client to come up with cost-effective, practical solutions to those issues, and to minimize liabilities. To do that, I need to know the business – what do they make and how do they make it? I’m comfortable talking to management, or the folks on the floor. Getting to know the business and how the client does what they do – that’s what drives me to work with manufacturers. I’m never happier than when learning how something works, how something is made, or just something new.

Photo of Jeffrey White Jeffrey White

I am a partner at Robinson+Cole who handles corporate compliance and litigation matters for both domestic and international manufacturers and distributors that make and ship products around the world. My clients have ranged from publicly traded Fortune 500 companies to privately held and/or…

I am a partner at Robinson+Cole who handles corporate compliance and litigation matters for both domestic and international manufacturers and distributors that make and ship products around the world. My clients have ranged from publicly traded Fortune 500 companies to privately held and/or family owned manufacturers. For those looking for my detailed law firm bio, click here.

I am often asked why I have focused a large part of my law practice on counseling manufacturers and distributors. As with most things in life, the answer to that question is tied back to experiences I had well before I became a lawyer. My grandfather spent over 30 years working at a steel mill (Detroit Steel Company), including several years in its maintenance department. One of my grandfather’s prime job duties was to make sure that the equipment being used was safe. In his later years, he would apply those lessons learned in every project we did together as he passed on to me his great respect and pride for the manufacturing industry.

Because of these experiences, I not only feel comfortable advising executives in a boardroom, but also can easily transition to the factory floor. My experience has involved a range of industries, including aerospace and defense, chemicals, energy, pharmaceuticals and life sciences, nutritional and dietary supplements, and retail and consumer products. While I have extensive experience in litigation (including product liability and class actions), I am extremely proactive about trying to keep my clients out of the courtroom if at all possible. Specifically, I have counseled manufacturers and distributors on issues such as product labeling and warranties, product recalls, workplace safety/OSHA, anti-trust, and vendor relations, among other things. I always look for the business-friendly solution to a problem that may face a manufacturer or distributor and I hope this blog will help advance those efforts.