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Michaels Says Temporary Staffing Agencies May Be Asked to Do More to Protect Workers

Thursday, June 13, 2013

By Robert Iafolla

 

The Occupational Safety and Health Administration is trying to develop clarity on what obligations staffing agencies have for the health and safety of the workers they hire out to host businesses, agency head David Michaels said June 11.

Michaels told the National Advisory Committee on Occupational Safety and Health that a staffing company's responsibilities would depend on the specific facts of the case, particularly the role it played after placing its temporary workers.

“If there is no supervisory role played by the staffing company at all, then they don't control the workplace at all, and therefore there's no direct relationship or direct ability for OSHA to go back to the staffing company,” Michaels said.

But he seemed less clear about some specific legal obligations related to temporary workers, who essentially have two employers: the staffing agency that hires and pays them and the host company that supervises them.

Training, Due Diligence

Michaels said OSHA is still working on the issue of where responsibility rests for ensuring workers get training required under several workplace regulations. When asked about what due diligence obligations staffing agencies have with respect to knowing what their employees will be involved in after being hired out, Michaels deferred to a Labor Department lawyer.

Deputy Associate Solicitor Ann Rosenthal said, “We are working very hard to develop theories whereby we can establish that there is some due diligence requirement.”

Michaels's discussion with NACOSH on protecting temporary employees comes six weeks after the agency announced a new policy focused on that workforce. OSHA sent out an April 29 memorandum to regional administrators outlining new checks inspectors should make when they survey work sites where temporary workers are employed (43 OSHR 411, 5/2/13).

Temporary Staffing: A Growth Industry

The 2.6 million people employed by temporary staffing companies make up just 2 percent of the overall U.S. workforce. However, employment in the temporary staffing industry has grown more than any other industry since the most recent recession, gaining about 900,000 jobs since August 2009, according to Ben Seigel, an official in the Labor Department's office of the assistant secretary for policy.

Seigel told NACOSH the top three sectors that employ temporary workers are manufacturing, office and administrative support, and transportation and material moving. The average tenure of a temporary worker is 14 weeks, he said.

Michaels suggested that short tenure is part of what makes temporary workers particularly vulnerable.

“In fact, we've known for 100 years that new workers are at greater risk for injuries and illness, and temporary workers can be new workers several times a year,” Michaels said.

Structural Issues

While OSHA has launched its concerted effort to protect temporary workers, Michaels acknowledged that the agency faces some structural obstacles. The fact that temporary workers are spread across multiple industries makes a national emphasis program a nonstarter, he said. OSHA has not identified which staffing agencies should be targeted for enforcement due to the way the agency regulates businesses, Michaels said.

“We tend to go into places where people are physically working, and so we don't focus on the agencies themselves or their locations,” he said.

But like any industry sector, some staffing agencies are more committed to protecting their workers than others, Michaels said.

OSHA's focus on temporary workers includes reaching out to staffing companies, he said. Toward this goal, the agency has partnered with the American Staffing Association and is planning a webinar with the group to help educate employers and provide best practices for protecting temporary workers.