Industry Trends: Additional Scrutiny for Temporary and Contract Workers

Employers often need to reduce costs and one method is to use independent contractors and temporary workers instead of full time employees. The use of temporary workers allows employer to add extra hands without the long term commitment of engaging full time employees and often with less overhead if they come via a temp agency.

As far as occupational safety training is concerned, temporary workers, employees of third parties and independent contractors must trained to the same level as regular employees under OSHA standards such as the Hazard Communication (Hazcom) standard.  However, some employers have been skimping on the temporary worker training with the result that temporary workers experience a higher accident rate; for example in California and Florida, temps had about 50 percent greater risk of being injured on the job than non-temps across general industry.

The problem often arises because the employer assumes the temp. agency provides safety training and the temp. agency assume the employer provides the training. OSHA & NIOSH say the following in their six page document:

Whether temporary or permanent, all workers always have a right to a safe and healthy workplace. The staffing agency and the staffing agency’s client (the host employer) are joint employers of temporary workers and, therefore, both are responsible for providing and maintaining a safe work environment for those workers.

OSHA and NIOSH have recently published guidance about the training of temporary workers. In brief summary, employers have a duty under the Occupational Safety and Health Act of 1970 to provide a safe work environment to both full time and temporary employees.

Another method used to reduce costs is to use workers who are independent contractors, and so the employer can pay them the going rate, without benefits, and leave responsibility for pay-roll taxes etc. to the contractor. For these reasons, the IRS, of course, does not like independent contractors and requires employers to demonstrate that the workers truly are independent contractors and not employees based on a number of factors related to control.

FexEx Ground has long used Independent Contractors as its drivers, though they wear a FedEx uniform, drive (their own) a truck with FedEx on the side and deliver to FedEx’s schedule. In an on-going dispute, FedEx won its case that the drivers were independent contractors in federal court in 2007, but that decision was reversed on August 27th this year in the Federal Court of Appeals for the 9th Circuit. Therefore, we can expect that going forward the IRS will be looking much more closely at 1099 independent contractors.

Switching topics again, OSHA recently partnered with the Department of Labor’s Wage and Hour Division and Bureau of International Labor Affairs, foreign embassies and consulates, and other federal, state, and local partners to educate disadvantaged foreign workers (of uncertain immigration status), that they also deserve a safe work environment. OSHA’s position is that an undocumented worker may be hiding from the Immigration and Naturalization Service, but they still have a right to a safe workplace under the Occupational Safety and Health Act.

These three cases appear completely unrelated but they all show increased protection for disadvantaged workers from employers who may otherwise take advantage of them. Legal trends often to go in cycles but it is too early to tell if the above reports are part of trend towards greater protection of workers, especially disadvantaged workers or just isolated cases.