Last week, Pam addressed the issue of temporary workers from an EHS perspective. Now, in this installment of one of our “360” posts, I’ll comment on the liability risks of having temporary employees.
First, an introductory note. I understand from my conversations with manufacturing executives that many companies need to use staffing agencies in order to locate skilled workers. In most cases, companies will hire the temps that work out after a trial period. Although there are liability risks, the reality is that most businesses need to hire the temp workers in order to maintain production levels.
With that said, there are a number of issues that a host employer should consider while it has temp workers on site.
- Training: Who trains the temps? In some situations, I have heard that the staffing agency trains its employees prior to their assignment. The quality and depth of that training can vary. For that reason, under some circumstances, it is important to assess whether the temp workers have been adequately trained to handle their particular job assignment. For instance, if they are using a machine that can injure them it is important to train them as if they are a brand new worker because if they are injured the host employer may be held responsible.
- Post-Accident Investigations: When a temporary worker gets injured at the host employer, the situation can get very complicated. Beyond the potential for an immediate OSHA investigation, it is likely that the staffing agency will want to conduct its own investigation. It is not unheard of for the staffing agency to send its own representatives to the facility to demand access in order to conduct an audit and investigation. While there are legitimate reasons for this, the host employer needs to proceed with caution and with the advice of legal counsel because the findings of the third party staffing agency could undermine the host employer’s own investigation and/or expose the host employer to additional liability.
- Pre-Contract Due Diligence: A common piece of advice that I give to manufacturers/distributors is to ensure that they know who they are in business with. For instance, when was the last time you visited or audited your suppliers? The same advice goes for staffing agencies. As Nicole has told me on many ocassions, the government can take a hard line with host employers even if the staffing agency was responsible for certain obligations (such as taxes, etc.). For that reason, it is important to spell out the terms of the relationship in a written contract even if the staffing agency uses a form agreement. I have counseled manufacturers/distributors on so-called “take it or leave it contracts” before so this is something that I can provide further counsel on for those that are interested.
These are just three of the liability issues that may arise. I am happy to address others so feel free to contact us and we will address them in a future post.