April 30, 1996

[Name Withheld]

Dear [Name Withheld]:

This is the third and last response to your letter of November 13, 1995, in which you requested information on temporary workers, particularly those in the electronic assembly industry and office workers like Kelly Services. This letter will address your questions #1, 7, 11, and 12.

Please keep in mind that these situations are very heavily fact-based, much of the interpretation depends upon the specific facts and circumstances of a particular situation and workplace.

The employees who work through employment agencies are generally called "temporary," "leased," or "supplied" workers (referred to in this letter as temporary workers). These employees are supplied by a "temporary," "leasing," or "supplying" employment agency who is their employer (referred to in this letter as temporary agency employer). This employer enters into contracts with secondary employers generally called the "host" or "client" employer (referred to in this letter as host employer).

Question #1. Whose safety program covers temporary workers? Should it be the responsibility of the temporary agency/supply employer to establish the systems for accident investigation, hazard identification, training, safety rule enforcement, etc.? We recognize this can only be effective by communications with the host employer regarding the specific tasks, work environment, etc.

Answer #1. We assume that your reference is to general or comprehensive workplace safety and health programs, as distinct from the specialized programs which are required by some OSHA standards, such as those which cover process safety management or lock-out/tagout. Except for the construction industry (see 29 CFR 1926.20 and .21), the Occupational Safety and Health Administration (OSHA) does not have a standard that requires employers to have safety and health programs in their workplaces. On January 26, 1989 OSHA published the Safety and Health Program Management Guidelines in the Federal Register, Vol. 54, No. 16 (copy enclosed). These guidelines, however, are not mandatory. Therefore, if a non-construction employer does not have a safety and health program, OSHA cannot issue a citation to the employer just because the employer (temporary agency employer or host employer) does not have a program. Under the Guidelines the host employer would be responsible for the safety and health program at the workplace. However, as discussed in an earlier letter, some responsibilities such as training may be the shared responsibility of the temporary agency employer and the host employer.

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Question #7. Would excluding temporary workers from various safety incentive programs present concerns to OSHA?

Answer #7. Some safety incentive programs actually present concerns to OSHA. Many employers have excellent safety incentive programs, but there are also some negative or dubious incentive programs that actually encourage employees to not report workplace injuries and illnesses. OSHA does not have a standard requiring any employer to have safety incentive programs: therefore, if an employer excludes temporary workers from such programs, it is not a violation of an OSHA standard. The safety and health of such workers, however, is still a responsibility of the temporary agency employer and the host employer.

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Answer # 11. When an OSHA Compliance Safety and Health Officer (CSHO) performs an inspection/investigation, that CSHO has a right to interview (at reasonable times) all affected employees regardless of whether they are temporary, loaned, leased, volunteer, part-time, or full-time. If the employer prevents the CSHO from doing so, the CSHO may terminate the inspection and get an inspection warrant. Such behavior can be considered "refusal to permit inspection." Page H-2 of the Field Inspection Reference Manual (FIRM) at paragraph A.2.c.(2) states: Employer Interference. Where entry has been allowed but the employer interferes with or limits any important aspect of the inspection, the CSHO shall determine whether or not to consider this action as a refusal. Examples of interference are refusals to permit the walkaround, the examination of records essential to the inspection, the taking of essential photographs and/or videotapes, the inspection of a particular part of the premises, indispensable employee interviews, or the refusal to allow attachment of sample devices. [emphasis added]

Question #12. How is the employer-employee relationship defined by OSHA when temporary workers are utilized in the workplace? Is there any guidance provided in the OSHA compliance directives or field manual?

Answer 12. OSHA does not address temporary workers in its field manual (the FIRM) and has not issued any compliance directives on the subject. On the definition of "employee" the FIRM states on page III-5 at paragraph C.1.b.(1):

Definition of Employee. Whether or not exposed persons are employees of an employer depends on several factors, the most important of which is who controls the manner in which the employees perform their assigned work. The question of who pays these employees may not be the determining factor. Determining the employer of an exposed person may be a very complex question, in which case the Area Director may seek the advice of the Regional Solicitor.

Two U.S. Supreme Court cases (neither case involved occupational safety and health), that discuss the criteria to be considered in determining the existence of a master-servant (or employer-employee) relationship in common law, are Nationwide Mutual Insurance Company v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed 2d 581 (1992) and Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166 (1989). The cases held that the following criteria is to be considered in determining whether there is an employer-employee relationship.

Right to control the manner and means by which work is accomplished. The level of skill required to perform effectively. Source of required instruments and tools. Location of work. Duration of relationship between parties. The right of the employer to assign new projects to the worker. The extent of the worker's control over when and how long to work. Method of payment. The worker's role in hiring and paying assistants. Whether work is the regular business of the employer. Whether the employer is in business. The provision of employee benefits. The tax treatment of the worker.

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The Court also cited section 220(2) of the Second Restatement of Agency (1958) which describes factors that indicate a master-servant relationship and held that all of the factors of the relationship must be weighed and assessed with no one factor being decisive.

Sincerely,

Raymond Donnelly, Director
Office of General Industry
Compliance Assistance