Employment Law and OSHA Concerns with Temps, Contractors, and Joint- and Multi- Employer Sites

By Eric J. Conn, Jordan B. Schwartz, and Lindsay A. Smith

Employers must beware as the U.S. Department of Labor (“DOL”) cracks down on what it perceives as rampant misclassifying employees as contractors and shirking other responsibilities, such as safety training, because a worker is supplied by another employer.  With more and more unique employment relationships and multi-employer worksites, it is crucial to understand the complexities of how the DOL and its various enforcement agencies define the employment relationship and/or assign liability in these contexts.

It has long been a priority of the Obama Administration to treat more workers as actual employees of host employers in order to provide them with a litany of labor protections and benefits, even when these workers are not hired directly, may not stay long, and may not even consider themselves to be employees.  This enforcement philosophy affects businesses in numerous areas – such as wage and hour law and OSHA compliance – even when employers thought staffing through an agency or on an independent contract basis relieved them of many of these DOL burdens and liabilities.  Not only does this increase the cost of many temporary, contract and multi-employer arrangements, it also puts employers at great risk of costly DOL enforcement actions if they do not understand when they have the responsibility (as opposed to another employer) to satisfy certain terms of labor law compliance.

First and foremost to keep in mind, although an employer may classify a worker as an independent contractor or as a non-employee temporary worker, and their maybe contract documents that express that classification, that does not mean DOL takes the same view.  Indeed, as DOL sees it, most workers should be treated as employees.  Also, employers may have certain employment law and OSHA-related obligations and potential liability even for non-employees depending on the employers’ roles at multi-employer worksites or in joint-employer situations.

New ‘Joint Employer’ Standard

Outsourcing to a temporary or contract worker can be a great way for a company to take care of some tasks and may make more sense for the business, rather than hiring full-time workers to fill those gaps.  However, if the DOL finds under one of various legal tests that the business is a joint-employer of that worker with another company, then numerous legal obligations kick in vis-a-vis these shared employees (such as collective bargaining and mandatory dispute resolution) as well as significant exposure for your organization under various labor laws.

In the past few years, both state and federal agencies have been expanding the joint-employer definition. Continue reading

OSHA Rule in FAR Clothing: The Government Contractor “Blacklisting” Rule

By Eric J. Conn

Following President Obama’s 2014 “Fair Pay and Safe Workplaces” Executive Order (EO 13673) — commonly referred to as the “Blacklisting” Executive Order by government contractors — this Spring, the Federal Acquisition Regulatory (FAR) Council in conjunction with the Department of Labor (DOL) issued proposed regulations and guidance implementing EO 13673. The companion proposals establish expansive new reporting obligations requiring disclosure of any OSHA citation issued — still just allegations — FAR 1within the three years prior to bid submission, as well disclosures of all other “administrative merits determinations” issued under 13 other labor laws. The proposals then require regular bi-annual reporting of the same data throughout the life of the contract.

Although the proposals are purportedly designed to identify and prevent “irresponsible” companies from obtaining federal contracts, because they cast such a broad net, based on mere allegations of violations, the rule’s likely effect will be to significantly intensify the scrutiny to which contractors will likely be subjected (and the costs they will need to bear to comply with the rule) without accomplishing the President’s objectives of ferreting out irresponsible contractors.

Specifically, the proposed regulations would require contractors bidding on executive branch contracts with an estimated value exceeding $500,000 to disclose any OSHA citation, regardless of the status of the citation or whether the citation has yet been upheld in the administrative review process afforded employers. All OSHA citations must be reported under the proposals, even citations characterized as “OTS,” or “other-than-serious,” the characterization OSHA applies to minor paperwork violations. The disclosure requirements apply equally to citations issued under the 27 state plan programs administered by state occupational safety and health agencies such as CAL/OSHA.

In addition to the disclosures contractors must make, prime contractors also must collect the same information from every subcontractor who has a contract or bid exceeding the $500,000 threshold (with the exception of subcontractors whose contract is for commercial-off-the-shelf (COTS) goods or services).

The DOL guidance indicates that contracting agencies’ “responsibility” determinations will consider most heavily only those OSHA citations (or other labor law violations) determined to be “serious, willful, repeated, or pervasive.” While this limitation may sound good, applied in the OSHA context, it provides cold comfort to responsible contractors. A review of 2009 – 2013 OSHA enforcement data shows that the vast majority of citations issued — upwards of 85 percent — are initially characterized as serious, repeat, or willful. This means that Continue reading