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:
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.
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.
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.