Temporary workers have been in the news lately – and that's a good thing. Both federal OSHA and the national American Society of Safety Engineers (ASSE) have launched initiatives to address the real risks created when an employee effectively works for two different employers at the same time.
Where the employer of record is different from the employer controlling the worksite, I believe both "employers" have a legal responsibility to protect those workers. Federal OSHA has sent signals that it is seeking to hold both employers accountable for the responsibilities that they should be fulfilling. That, I think, is good news. But it leaves a question as to exactly what those responsibilities should be – ASSE and other organizations are focused on "best practices," but we know that for some employers, an understanding of their legal obligations will always drive their actions more than what the best in the industry have found to be effective.
For me, the question is relatively straightforward in concept, although it can be more complicated in specific circumstances. If you work for me I am responsible for your safety. And if you work under my supervision and control, I am responsible for your safety.
When the employer of record sends employees to someone else's worksite to work under someone else's control, that employer still has a legal responsibility to protect the workers from hazards about which the employer knew or should have known. That is, I believe, existing law. And unreasonable ignorance of what those employees actually will be doing does not provide any excuse.
As to the employer who supervises the day-to-day work, when an employer takes on the responsibility of supervising an employee's day-to-day work, then that employer is responsible for worker safety as well. That is, I believe, also existing law.
It can work well when both employers step up to the plate. Unfortunately, they do not always do so. Problems arise when one employer acts as if it is really just a payroll company in practice. The on-site employer may believe safety is not its problem because the employee is not its employee. So the worker – unusually vulnerable to and fearful of retaliation precisely because of the tenuous employment relationship – has no one looking out for him or her.
Unfortunately, this is not an academic issue. Many of the really egregious abuses of worker safety I have seen in 20 years or so in the business involved such a dual employer situation that was viewed by both employers as "it's not me – it's him!"
The best model is one that acknowledges a slight overlap in responsibility. It is important that there not be a gap through which workers and their safety are allowed to fall. The employer of record can and should be held accountable for training, basic equipment, etc. (either to provide it or to arrange for it). But responsibility for breakdowns in supervision or on-the-job work practices has to fall to the host employer. At the same time, the employer of record cannot be allowed to wash its hands of supervisory breakdowns of which it is (or clearly should be) aware.
"It's not my job, I'm not on site" is at least as dangerous a mantra as "it's not my job, they aren't my employees." Again, the best employers understand this. The question is how to handle those who do not.
Can we always bring our legal tools to bear on the employers who start by explaining what they don't have to do? Maybe not. But we can try.
Oregon OSHA Administrator
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