A Growing Industry
The temporary employment sector is a massive economic engine, but, as it continues to grow, safety professionals are presented with serious complications. Since 2010, the temp industry has added more jobs in the United States than any other category of employment, according to the American Staffing Association, the trade group representing temp recruitment agencies and outsourcing specialists.
Temp labor has evolved from clerical office work to encompass a much broader spectrum of labor. Low-wage, temporary jobs have become so prevalent that they can be found in nearly every sector of the economy today, threatening to become the new norm. In 2013, the Labor Department reported that the U.S. had a record 2.7 million temp workers.
The American Staffing Association reported that on the average workday, over 3 million temporary employees were working during the third quarter of 2013. Through the staffing industry, 20,000 temp jobs are added to the economy each month, according to the U.S. Bureau of Labor Statistics.
Staffing is big business, getting bigger by the day, and this rapid growth has only fueled confusion about responsibility for safety training. It has also renewed scrutiny of the industry from the Occupational Safety & Health Administration (OSHA) and labor protection groups. There’s been a widely recognized lack of clarity, but that’s now changing out of necessity and demand.
It’s pretty simple. Growth in the temporary employment sector is primarily driven by sensitivity to pay and benefit cost containment, but also staffing flexibility. Increasingly, it is a leaner way to operate for many businesses. But as the temp workforce continues to expand into mainstream manufacturing, worker advocacy groups and OSHA have become concerned about the hazards and risks faced by the transient workforce, marked by the absence of safety training and personal protective equipment (PPE).
In 2013, the National Staffing Workers Alliance sponsored the Temp Worker Health and Safety forum with the National Council for Occupational Safety and Health. These increasingly visible groups are the most credible entities representing the safety interests of the temporary worker.
At the event, the Alliance and stakeholders advised temp workers to seek health hazard evaluations from the Institute of Occupational Safety & Health on dangers including asbestos, construction hazards, diesel exhaust, ergonomics, and machinery safety. Attendees were also provided with basic information about accessing appropriate OSHA materials.
Injury Rates on the Rise
A 2010 study of temporary workers in Washington reported that from 2003 to 2006, these workers had higher rates of injury for all injury types. The temp worker demonstrated higher median time loss (40 vs. 27 days), but lower time loss costs (median $1,224 vs. $1,914) and lower medical costs ($3,026 vs. $4,087) than standard arrangement workers. Temporary agency workers also had substantially higher rates for “caught in” and “struck by” injuries in the construction and manufacturing industry sectors. In Florida, a study of state workers’ comp records found temps in ‘blue collar’ workplaces were about six times as likely to be injured as permanent employees doing similar jobs. Temp workers have been repeatedly pulled into machines, stricken by heat exhaustion and asphyxiated by chemicals, sometimes on their first day on the job. One logical explanation for these figures is that temp workers in high-risk employment scenarios are exposed to the same hazards as are more experienced workers, but lack knowledge and proper safety training accumulated over years of rigor by those traditional employees. It is easy to see from those statistics why temp employment is attractive to employers: lower wages and benefits (if any) are at stake when compared to full-time employees, so the cost to employers is less in the event of a workplace accident. But looking at the median time loss figures also make it clear that the safety of temporary workers must be a priority.
A Fragmented Workforce
At least part of the confusion regarding safety training responsibilities for temporary workers comes from the fragmentation of workers who make up this segment of the workforce. As identified by the Chicago Workers Collaborative, workers are divided by numerous factors such as income, gender, race, immigration-status, and language barriers. It is presumably difficult for this vulnerable worker population to speak out, collectively or individually, and, according to the Collaborative, some are afraid to complain about obvious and routine safety violations, like dangerously overcrowded transportation methods, late paychecks, and forced overtime. According to worker Rosa Ramirez, 49, in a ProPublica investigation, many temporary employees don’t report injuries to avoid potential employer retaliation. “(We’re) very afraid of saying anything for fear of losing our jobs,” she said. “I no longer could stand the abuses. I was hoping that people would join me and would agree and would stand up for themselves, but unfortunately the majority of the people did not.” Increasingly though, temp workers are willing to voice concerns in anonymous surveys. In one 2005 survey by the Day Laborer Collaboration, a representative group consisting of Latino workers employed by day laborer agencies in Chicago’s “Little Village” neighborhood, 98 of the total 143 respondents had concerns about their physical safety on the job. In some cases, workers were not provided with needed protective gear. 87% of the respondents had no knowledge of workers’ compensation and four of the 19 day-laborer agencies in the neighborhood were either operating with expired workers’ compensation insurance, or had none at all.
OSHA Jumps In
OSHA Chief Dr. David Michaels initially addressed this growing concern on Workers Memorial Day 2013, “Over the last year, the U.S. Department of Labor’s Occupational Safety and Health Administration has received far too many reports of workers killed in their first few days at work. Many of those killed and injured are temporary workers who often perform the most dangerous jobs; (they) have limited English proficiency and are not receiving the training and protective measures required.”
Dr. Michaels also cited three cases:
■ Samir Storey was killed in a South Carolina paper plant on his first day on the job. He was sent in to clean a seven-story high chemical tank and was trapped inside when the tank began to fill with toxic liquid and vapor. He left behind his wife and their three children.
■ 28-year-old Adrien Zamora fell 40 feet from a scaffold while restoring an 11-story building in New York. It was his first day on the job, and he had not been given a fall protection harness or the necessary safety training. He also left behind a wife and their two young daughters.
■ 21-year-old temporary worker Lawrence Davis was crushed to death on his very first day at work while he was cleaning up glass inside a palletizer at a Florida bottling facility. OSHA investigation found that he and his co-workers were never trained in the simple lockout procedures that would have saved his life.
In a follow up op-ed piece written by Dr. Michaels and published in the Houston Chronicle in October, Michaels outlined the Administration’s growing concern with the situation: “We have known for a century that new workers are at increased risk for occupational injury and fatality, and that higher risk is due to a lack of safety training and experience at that work site. Many employers decide to forgo important safety training for their temporary employees that would normally be given to permanent employees.
Safety training is a cost of doing business, so some employers just skip it or assume that the staffing agency has conducted the training. As the number of temporary workers rises, is it inevitable that injuries and fatalities will rise as well? I refuse to accept that assumption. We know why these workers are getting hurt and we know how to stop it.”
In July of 2013, Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, mentioned that 270 violations were cited at workplaces where temporary workers are present. The most frequent violations found at workplaces where temp workers are identified include electrical hazards, hazards requiring lockout protections, machine guarding, fall protection, hazard communication, and powered industrial trucks.
Defining the Shared Responsibility Doctrine OSHA explains on its temporary worker safety page that “…staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers— including, for example, ensuring that OSHA’s training, hazard communication, and recordkeeping requirements are fulfilled.” Of course OSHA has a strategy to share in executing on joint responsibility. “A key concept is that each employer should consider the hazards it is in a position to prevent and correct, and in a position to comply with OSHA standards. For example, staffing agencies might provide general safety and health training, and host employers provide specific training tailored to the particular workplace equipment/hazards.”
For help with interpretation, OSHA offered the following tips:
■ The key is communication between the agency and the host to ensure that the necessary protections are provided.
■ Staffing agencies have a duty to inquire into the conditions of their workers’ assigned workplaces. They must ensure that they are sending workers to a safe workplace.
■ Ignorance of hazards is not an excuse.
■ Staffing agencies need not become experts on specific workplace hazards, but they should determine what conditions exist at their client (host) agencies, what hazards may be encountered, and how best to ensure protection for the temporary workers.
■ The staffing agency has the duty to inquire and verify that the host has fulfilled its responsibilities for a safe workplace.
■ Host employers must treat temporary workers like any other workers in terms of training and safety and health protections. The Administration’s concern with the confusion over safety training and safe work conditions for the temporary labor force has finally reached a tipping point after decades of data gathering showing growth of negative incidents. Back in 1994, the agency wrote a “letter of interpretation” to the National Employment Service Corporation to answer the company’s question:
“Who is responsible for hazard communication training of the temporary employee. The [temp] agency or the client employer?” OSHA replied: “Since it is your company, which maintains a continuing relationship with its employees, but another employer (the client) who creates and controls the hazards, there is a shared responsibility for assuring that your employees are protected from the workplace hazards. The client has the primary responsibility of such protection. The ‘lessor employer’ likewise has a responsibility under the Occupational Safety and Health Act. In meeting the requirements of OSHA’s Hazard Communication standard the lessor employer would, for example, be expected to provide the training and information requirements specified by the HCS section (h)(1).”
“Client employers would then be responsible for providing site-specific training and would have the primary responsibility to control potential exposure conditions. The client, of course, may specify what qualifications are required for supplied personnel, including training in specific chemicals or personal protective equipment (PPE). Contracts with your client employer and your employees should clearly describe the responsibilities of both parties in order to ensure that all requirements of the regulation are met.”
Paying Attention to the Fine Print
It is clear that host employer responsibility should be taken seriously, so it is advisable to commence with record keeping as a key component of incorporating temp workers. If supervising the temporary worker, host employers must claim any recordable injury to the worker on their OSHA 300 long form. On March 13, 2014 OSHA released a new educational bulletin on injury recording requirements to help protect temporary workers. Since temp workers are a greater risk of injury, accidents of course adversely affect the company’s injury rate. For staffing agencies, because the worker agency assumes the workers’ compensation claims for an injured placed employee, additional workers’ compensation costs for agencies cause an inflated experience modification rate (EMR), which makes the purchasing of workers’ comp insurance more expensive, putting staffing companies at a disadvantage when competing in the marketplace. As the temp workforce continues to grow in size and segmentation, and governing oversight from OSHA expands in scope and detail to match, expect the “shared responsibility” mantra to become more fully defined. Organizations now relying heavily on the temp workers should position themselves proactively to address the concerns associated with safety training for these employees—they should have a plan, or at least an answer, to the question of shared responsibility. The same is true for industries seeing a migration of temporary labor into the workforce. Staying out front of the issue, it seems, would be wise. How? Offer a basic safety training program and communicate clearly with staffing agencies to understand the level of safety training.
The Road Ahead
It would seem the staffing industry is perhaps naturally at odds with OSHA, simply by virtue of the workforce it is stereotypically associated with, but that’s a difficult characterization to make—there is a vast and vague socioeconomic diversity in that employment sector. And after witnessing years of explosive growth and dynamic expansion of the business, the staffing industry continues to invest in safeguarding itself by influencing policy, just like every other major industry in America. It’s probably fair to say that the expense or responsibility of safety training for these groups is perhaps best considered as another weight on the prospects of the industry. Perhaps the most we can hope for is a policy making partnership with OSHA that recognizes the staffing industries’ role of enfranchising low and high skilled temporary workers when jobs are scarce, while balancing for common sense safety training concerns as recognized by OSHA.
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