We are now two years into the Trump Administration, and we have seen a mixed bag of changes in the OSHA enforcement and regulatory landscape. We have watched some late Obama-era OSHA rules get repealed by the Congressional Review Act or delayed and amended through deregulatory rulemaking. We have seen some efforts to boost up the VPP Program and other cooperative programs—the sorts of policy shifts at OSHA many expect in a transition to a republican administration. However, we have also been surprised by OSHA increasing the number of inspections, setting records for the number of $100K+ enforcement actions, and continuing to issue hard hitting press releases. And most surprising of all, OSHA still does not have a Senate-approved Assistant Secretary—the longest ever wait for a permanent OSHA Administrator.
As we move into the out years of Pres. Trump’s first term, we expect more reshuffling of OSHA’s enforcement priorities and policies, and more surprises, so it is critical to stay abreast of OSHA developments. This complimentary 2019 OSHA Webinar Series, presented by the OSHA-specialist attorneys inConn Maciel Carey’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this unpredictable time.
Employers’ perceptions about their legal responsibilities for certain workers is not always reality. Although an employer may classify workers as temporary workers or independent contractors, that does not mean the Department of Labor takes the same view. At the tail end of the Obama Administration, DOL was vocal about its belief that most workers should be treated as employees, insinuating that in most cases, employers will be accountable for the specific obligations of an employer-employee relationship. The Trump Administration is moving in the other direction, but a lot of questions remain unanswered or muddled. DOL has also been cracking down on employee misclassification and division of responsibility among multiple employers. Additionally, employers continue to have certain safety and health related obligations and potential OSHA liability depending on their role at multi-employer worksites or in joint employer situations.
It is essential for employers to carefully evaluate the employment relationship and their own individual function in the multi-employer context.
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 →
Employers’ perceptions about their legal responsibilities for certain workers is not always reality. Although an employer may classify a worker as a temporary worker or independent contractor, that does not mean the Department of Labor takes the same view. Recently, DOL has been vocal about its belief that most workers should be treated as employees, insinuating that in a majority of cases, it would hold employers accountable for the specific obligations of an employer-employee relationship. Additionally, employers may have certain employment law and OSHA related obligations and potential liability depending on their role at multi-employer worksites or in joint employer situations.
Overall, DOL has been cracking down on employee misclassification and division of responsibility among multiple employers; thus, it is essential for employers to carefully evaluate the employment relationship and their own individual function at in the multi-employer context.