By Robert G. Chadwick, Jr.,  Partner, Freeman Mathis & Gary, LLP.

In March 2016, OSHA conducted an inspection of the Thomson, Georgia facility of HP Pelzer Automotive Systems, Inc., an automobile parts manufacturer.  Among the employees working at the facility were 300 temporary employees supplied by Sizemore, Inc., a staffing agency.  On September 7, 2016, OSHA issued citations proposing penalties of $654,726 against HP Pelzer for various machine hazards.  The same date, OSHA issued citations proposing penalties of $49,884.00 against Sizemore.

The dual citations against HP Pelzer and Sizemore are not unusual. Just this year, the following dual citations have also been issued by OSHA against both the host employer and the staffing agency supplying temporary employees:

July 15, 2016: Citations proposing penalties of $87,120 against Pyongsan America, Inc., an automobile parts manufacturer, and citations proposing penalties of $18,900 against Surge Staffing, LLC, a staffing agency, were issued for various machine hazards.

June 29, 2016: Citations proposing penalties of $3,426,900 against Sunfield, Inc., an automobile parts manufacturer, and penalties of $7,000 against each of three staffing agencies, Atrium Personnel, iforce and Employers Overload, were issued for various machine hazards.

June 24, 2016: Citations proposing penalties of $58,800 against Terrell Manufacturing Company, a woodworking manufacturer, and Citations proposing penalties of $4,800 against A.L. Staffing, a staffing agency, were issued for various machinery hazards.

February 2, 2016: Citations proposing penalties of $37,600 against Kinsey Corp., a construction contractor, and $7,000 against Gillmann Services, a staffing agency, were issued for trenching and excavation hazards.

Why Does a Safety Violation Affecting Temporary Workers Subject Both the Host Employer and Staffing Agency to a Citation?

The answer is that the OSH Act imposes a responsibility on each employer to protect the safety and health of employees subject to its direction and control, even if the employees are jointly employed by another employer.  For host employers, this responsibility extends to temporary employees supplied by staffing agencies.  For staffing agencies, this responsibility extends to temporary employees supplied to host employers.

What Violations are the Subject of Dual Citations by OSHA?

So, why are staffing agencies being cited for safety violations located at host employer work sites over which they may have no control?  The answer is that the OSH Act imposes a responsibility on employers to protect their employees, regardless of where the employees work. As indicated in the Temporary Worker Initiative  launched by OSHA on April 29, 2013, it is the responsibility of a temporary staffing agency to follow the OSH Act with respect to workers supplied to host employers.

So what violations are staffing agencies being cited for by OSHA?  After all, it is the host employer, not the staffing agency, which generally controls the working conditions at its work site.  For dual citations, one common violation is a failure of temporary employees to be trained for the tasks performed for the host employer. According to the Temporary Worker Initiative, it is typically the responsibility of a staffing agency to provide general safety training to its employees before sending them out on job assignments.  For more specific safety training, the staffing agency must either (1) provide such safety training itself, or (2) ensure that such training is being provided by the host employer. If these responsibilities are not undertaken by the staffing agency, a citation may issue.

Where hazardous conditions exist at a host employer, a staffing agency may also be cited for the hazardous conditions themselves.  According to the Temporary Worker Initiative, a staffing agency has duties of inquiry and verification with respect to the workplaces to which temporary workers are assigned.  Specifically, the staffing agency has the duty to inquire and verify that the host employer has fulfilled its duties to provide a safe workplace.  If these duties ae not fulfilled by a staffing agency, a citation may issue.

What Steps Should be Undertaken by Staffing Agencies In Response to OSHA’s Enforcement Efforts?

As a first step, no employee should be assigned by any staffing agency to any worksite without documented general safety training.  General training may be different for office worksites, but should still be required and documented.

Secondly, before assigning any workers to a host employer, a staffing agency must become generally familiar with the OSHA standards applicable to the host employer’s industry.  Only by becoming familiar with such OSHA standards can the staffing agency adequately fulfill its independent duties of inquiry and verification as to such standards with the host employer.

Finally, before assigning any workers to a host employer, a staffing agency must communicate with the host employer regarding (1) the working conditions which exist at the host employer’s worksite, (2) the duties which will be undertaken by temporary workers, (3) the hazards which may be encountered by the temporary workers, and (4) the procedures, including specific training, to be undertaken by both the staffing agency and/or the host employer to ensure compliance with applicable OSHA standards.  As with all OSHA compliance efforts, communications with the host employer should be thoroughly documented.