As reported earlier this month, OSHA has released a new draft guidance document which aims to arm inspectors with tools for determining culpability in cases where safety violations involve franchises or joint employers. Specifically, the proposed guidance would compel inspectors to consider such factors as monies exchanged between franchisees and corporate parents, corporate brand directives, and other factors when preparing a citation.
This newly-proposed guidance is part of a larger trend by OSHA to work on eliminating “grey areas” in which multiple entities may be responsible for worker safety on the job. Previously, OSHA has focused on temporary workers in this connection. For example, OSHA clearly finds it problematic when a temporary worker is injured on the job and the staffing agency believes the employer was responsible for safety training, and the employer believes the staffing agency was responsible for safety training. In 2013, OSHA launched the Temporary Worker Initiative to address these cases, and to direct inspectors that when “key attributes of the traditional employer-employee relationship are shared by two or more employers . . . they each bear responsibility for compliance with statutory and regulatory requirements.”
In recent months, OSHA head Dr. David Michaels has become even more vocal on issues surrounding joint employers. In a meeting of the National Advisory Committee on Occupational Safety & Health, Dr. Michaels characterized this as a necessary response to a growing trend. He noted that:
“Work is increasingly being performed by contractors, subcontractors, employees of staffing agencies, or often a combination of all of these. Unless properly managed, these changes greatly increase risk of injuries and illnesses among all the workers in these workplaces, and further contribute to the issue of income inequality. Too often employers do not provide these workers with the same protections or training as permanent employees. And too often employers of different workers at the same worksite fail to communicate about the presence of hazards, therefore endangering some or all the workers at the site. New tools are needed to address these changes in employment relationships.”
The new draft document signals that Dr. Michaels’s concerns about joint employers extend to ambiguities in the franchisor/franchisee relationship as well. While the language of the draft document makes clear that an accident at a franchise does not necessarily mean that the larger corporate franchisor will be liable, it directs OSHA inspectors to use “factual information about the relationship” to make a determination. In short, it leaves open that possibility.
Pushback against this new guidance document has already begun. The U.S. Congress’ Education and the Workforce Committee issued a press release earlier this month objecting that the proposed guidance would inappropriately “blur the lines of responsibility” for franchisors and franchisees. The release also argued that the new guidance was unnecessary, because OSHA already has a policy in place for multiemployer citations. Two members of the committee — Tim Walberg (R-MI) and John Kline (R-MN) — sent a letter to Labor Secretary Thomas Perez outlining these objections, and arguing that the guidance would improperly instruct OSHA inspectors to delve in to matters “far outside their expertise.” The letter accused OSHA of “drifting further from the agency’s core mission.”
The congressional committee asked for a quick response to these concerns. While it isn’t known if this request will be met, it remains clear that OSHA is steadily building momentum on issues related to how joint employers handle workplace safety.
In June of this year, OSHA issued Directive CPL 02-02-079, which provided further clarification about chemical safety as relates to temporary workers and workers on multi-employer worksites. The directive indicated that multiple employers could be found liable for violations of the Hazard Communication Standard when employees of one company were exposed to the chemicals of another company on site. For example, the directive instructs that:
- “Staffing agencies and host employers share control over temporary employees, and are therefore jointly responsible for ensuring that they are effectively informed and trained regarding exposure to hazardous chemicals. When employees from a temporary agency are working at a site where hazardous chemicals are being used, the responsibility for training is shared by the staffing agency and the host employer.”
- “The HCS obligates all employers, including those on multi-employer worksites, who may expose their employees or employees of other employers (e.g., temporary workers and contractors) to hazardous chemicals to develop a written program.”
- “On multi-employer worksites, citations for violations of (g)(8) of the standard shall be issued to the employer responsible for making the SDS(s) readily accessible.”
- “If an employer on a multi-employer worksite brings hazardous chemicals onto that site and fails to inform other employers about the presence of those chemicals and/or the availability of the SDS(s), that employer shall be cited for violation of (g)(8) grouped with (e)(2)(i).”
In these examples, OSHA places the onus on all employers in multi-employer worksite situation to protect employees from hazardous chemicals.
Given the breadth of OSHA’s efforts to address joint employers —as reflected in the new HazCom Enforcement Directive, the inspector draft guidance document, and Dr. Michaels’s recent address at NACOSH — even with Congress making condemnations, don’t look for the agency to change course anytime soon!