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#13: The real test is, ‘Can we change other people’s minds about this?’

November 7, 2018 | 1 hour 5 minutes 50 seconds

Podcast series host Jill James connects with filmmaker Dave DeSario, an unlikely workplace safety champion and outspoken reform advocate.

Dave, a lifelong temp worker, is founder of the Alliance for the American Temporary Workforce. His 2015 film A Day’s Work—a must-see for any occupational safety and health leader—spotlights the plague of serious injuries and workplace fatalities (SIFs) amongst the fast-growing temporary labor force. You’ll learn about the safety nuances and pitfalls of non-traditional employee-employer relationships, the correlation between workers’ compensation systems and increase in temp staffing nationwide, and why this population of workers is more at-risk than your traditional employee population. This episode will connect you with resources to ensure you’re in-step with OSHA’s guidelines for temp worker safety, and open your eyes to an unseen safety epidemic that may hit close to home.

Transcript

Jill:

This is the Accidental Safety Pro, brought to you by Vivid Learning Systems and the Health and Safety Institute. Episode number 13. My name is Jill James, Vivid's chief safety officer, and today I'm joined by Dave DeSario, who is the founding member of the Alliance for the American Temporary Workforce. Dave is also a member of the Services Sector Committee for NIOSH and he's the executive producer of the documentary, A Day's Work. Dave joins us today from his home in Brooklyn, New York. Dave, thank you so much for being with us.

Dave:

Thanks for having me, Jill. Really excited to be here and happy to be talking with all the safety pros out there.

Jill:

Excellent. So Dave, you're a unique safety pro. Literally accidentally came into this practice. I'm wondering if we couldn't get our time together started by really explaining how you found yourself to be a fierce advocate for workplace safety, with a particular focus on a particular group, and that group being temporary workers.

Dave:

Sure. Well, you know, as a temp worker many times over, I'm used to being perhaps the least qualified person in the room. So I'm coming at this safety and health side of things from a very different background as a lot of the folks that are going to be listening today. So, it really starts off as a temp worker in a warehouse as a teenager. In my early and mid twenties, I changed the color of my collar a bit from blue to leaning a little bit more towards white, but I was a temp worker many times over. And I found that what I was told by the temp agencies and what my coworkers were told was not matching up with the reality of what we found in the workplace. So it's about nine years ago now, I started a website, it's temporaryemployees.org, to put out a worker's perspective on temp work and to connect with temp workers all over the place, because we're not just all over the US. We're all over the world. We're in every industry, in every occupation. And, through that website, started to get a lot of feedback from temp workers, and started to get in touch with a lot of organizations that were organizing temp workers on the ground.

And what we saw over and over again were concerns about safety, and confusion from workers about what to do when they were in an unsafe situation. Who to talk to, might they lose their jobs if they spoke up? And this all really came together about five, six years ago, and this got started from Dr David Michaels, who used to be the assistant secretary of labor. And he really started to wave that big red flag around about temp workers and a string of incidents of temp workers being killed on their first day on the job.

So in a lot of ways, we had seen a lot of anecdotal stories popping up, but I don't think we realized quite how extensive the problem was until OSHA took the lead on it. For temp workers who face a lot of issues on the job, they might be doing the same work as the employees next to them, but they are paid much less. They don't have access to benefits or health insurance in the same way. They don't have a voice in the workplace. Really the biggest concern is that fundamental right, that right to come home from the job in the same condition that they went to it in. When you look at the issue for temp workers, I've gotten really involved because this is a population that often one, it doesn't know that they're at greater risk of being injured. So I hope I can help change that perception for the workers, for the host employers that are controlling these work sites, and for the temp agencies that are sending temp workers out on the job. So if we can increase awareness of that problem, I think we're going to keep them safer.

And number two, this is a population that can't always speak out for themselves. They can be fired at any time for any reason. They're precarious in these jobs. And often they don't even know who their real employer is. If something's wrong, should they go to the temp agency or should they tell their site supervisor? There's often a confusion about what to do when they do encounter something they think is unsafe, and that along with the pressure of potentially being fired if they speak out, temp workers, we really need people speaking out for us sometimes because it's hard for them to speak for themselves.

Jill:

Sure, exactly. So Dave, you had mentioned that you started, you've done a lot of temporary work yourself and that was part of your inspiration and then you said your collar turned slightly toward white. That perhaps was a piece that was launching you to start this initiative. You have a background in writing as well, correct? Is that a piece of what got you going?

Dave:

Well, I'd done some reporting, mostly video reporting for the New York Post in the run up to the 2008 election. So, side note, from Safety Towards Politics, leading into 2008 it looked like here in New York, we could cover that presidential election without going anywhere, because the three major front runners at the time ... For the Republicans, it was Rudy Giuliani, for the Democrats, it was Hillary Clinton. And there was this looming threat that Mike Bloomberg as an independent was going to come into the race. So we really thought we could cover politics just here in New York on a national level for that 2008 election. Now none of those candidates worked out, but it did give me a background in writing and in video production that really helped with this film. Actually at the time I was moonlighting for the Post and I was working as a temp worker in the basement of an auto parts factory in Queens that was shutting down its production, and literally the workers that were there were packing up the machines they've worked on for decades. And they were either going to Mexico or China depending on which machine it was.

So it was ... You talk about ... It's like you can't make up an example that is more illustrative of some of the issues in manufacturing, where you take an auto manufacturer and you have temp workers in there, who alongside those permanent workers, are taking the equipment they worked on and shipping them overseas. This was 2008, 2007, 2008, so really in the worst, coming into the worst of the recession. But I think a lot of that experience influenced where I am today as an advocate for temp workers.

Jill:

And so you're, by degree, your background is in, is it in journalism?

Dave:

I think it's episode 10 of your podcast, you were talking with a safety and health expert who wound up in safety and health because they had an undergraduate degree in psychology.

Jill:

Yeah, right?

Dave:

[crosstalk 00:07:13] any jobs that way, so.

Jill:

Same for you?

Dave:

It did not influence that at all. So.

Jill:

Okay. Okay. Interesting. Interesting. Thought I would ask that because that's part of the accidental pieces. Some people have educations in safety, others don't have a formal education and some come by way, like you said, a psych degree and knew that you couldn't get a job in that field. So somehow safety found them. So thank you for that background and piece. I'm wondering if you could talk maybe what happened next in your career that led you to decide you wanted to do a documentary, and how you found the story of Day Davis and talk a little bit about that.

Dave:

So Day's case in particular was one that OSHA was drawing attention to because I think it illustrates a lot of the examples of what's going wrong, both in the workforce broadly and in the temp industry. And in the safety and health world. Day's case is one that's really featured in the film because of who he is. So it's a young worker, someone who is 21 years old, and we see temp workers tend to skew young, and so do workplace injuries tend it happen to younger workers and newer workers. Thinking of the broader economy, Day with someone that had a degree and had skills that were matched up for a completely different industry. He had no business on a factory floor. He was there because there's not enough work for people. And he took a job because he needed the money. And you look at the cost cutting going on at a lot of companies and the training that he received before he went into work, he was given 15 minutes for orientation and training before working on some of the most dangerous equipment that anyone can work on.

So we see a lot of these factors coming together, and his case in particular was one where, if someone outside the safety and health world, I think I was guilty in a lot of ways too, of ... When you hear about a serious injury or fatality, maybe the first thought that I had was, "What did this person do? What did this worker do to make that happen?" And I think Day's case is such an important one because it is so clear that it's not his fault, and it's so clear that responsibility falls on so many different people and so many different companies, where there were many opportunities along the way for safety professionals, for supervisors, for coworkers, for managers, for executives, for big companies, to somewhere along the line, do the right thing, make safety a priority, make safety a priority over production and over profit. But it was missed.

So coming at it as an outsider, Day's case meant a lot to me and also as someone that worked as a young person in a warehouse not too different as Day did, so it wasn't so different from me. But I think as an outsider, what was truly shocking was hearing the number of fatalities that are on the job. If you're a former OSHA inspector, these numbers are second nature for you, or if you're in safety and health they are. And maybe it's something you take for granted, or you see the long view. So if you hear 4,500 or 4,600 Americans died on the job in the last year, maybe that doesn't sound so big when you think of the history of OSHA. Was it two or three times that?

Jill:

Yes.

Dave:

In the seventies?

Jill:

In the early ... Yes, exactly.

Dave:

Maybe to someone in the industry that sounds like more of a success story, or sounds like a lower number. But I think, as an outsider, when I thought of workplace fatalities, I thought of Bangladesh, or somewhere not here.

Jill:

Right? So that was a shocking piece to you in finding out that, "Oh my gosh, a lot of people die on the job," and then to find out there's a disproportionate number associated with temp workers.

Dave:

And that's a big portion of what's What A Day's Work is about. So it focuses on the temp industry, but it's really about occupational safety and health too. And I think correcting my own misperception, and I think one that's shared with a lot of people that aren't coming from it, from within the industry, of just how dangerous work can be for so many Americans. And not just those fatalities, but the huge number of injuries and the huge number of deaths that might occur from a lifetime of exposure. So.

Jill:

Right, right. I think ... Go ahead, Dave.

Dave:

No, I just wonder as ... I wonder how those same numbers are seen by all you folks, who work in safety and health and have that experience. Because there is a success story there over the decades.

Jill:

There is-

Dave:

Jumping in at my starting point, I was shocked.

Jill:

Exactly, exactly. Yeah. We can all go to the OSHA website. We can see what it was in, when we started collecting the data, in 1970. We can see where we've gone. Safety pros have all sat through presentations where we have successes, right? When we talk about those successes and how we've driven down the fatality rate, we've driven down the injury and illness rates across the country, yet it still exists. And so we, while we have had success, I wouldn't say that any of us would ever say it's, where we are today is acceptable. And any life lost is not acceptable. Any illness caused, not acceptable, particularly because we know that these things are preventable. You had mentioned and you touched on some things about what was shocking to you and where your head first went, which was a bit of, "What did he do wrong?"

Dave:

Yeah.

Jill:

And the whole "What did he do wrong?" is very unfortunately one of those cliche sort of things that turns out to be true in some cases, where that is the first assertion that's made. Not all employers do that. Speaking as someone who's investigated over 30 workplace fatalities and injuries, I can speak to employers who absolutely did not go the victim blaming route, and others who did. And I've seen both sides of that and pieces of that are those assumptions that are made that this, it's first of all the reason was singular, when it's always multifactorial, which is what you're pointing out in your documentary as well. And that there's this myth around making an assumption that people have knowledge about the hazards to which they're exposed by way of some common sense acid test.

Jill:

And that's simply not the case. It's simply not the case. We can't make assumptions about what employees and temporary employees in particular know about the environment they're going in based on their background. Like you said, Day Davis had a background, his educational background was in medicine.

Dave:

Yeah. He was-

Jill:

It wasn't in working in a factory.

Dave:

He was trained and certified as a medical office assistant. So you think about all the piles of paper that might come from an insurance company, he knew how to deal with that. He knew how to deal with doctor's offices. This is a professional position. He had no training or experience that was going to prepare him to be on a factory floor working with a palletizer. Expected to know or recognize perhaps that his employer didn't have lockout tag out policy. [crosstalk 00:14:57]

Jill:

Or even what that was.

Dave:

Exactly. I had no idea that was.

Jill:

Yeah.

Dave:

Those sort of expectations are certainly unreasonable.

Jill:

Yeah. Yeah, absolutely. So when you decided that you wanted to do a documentary, and you needed to contact and find Day Davis's family, tell us about how that went for you. How did you go about doing that and building a rapport enough for a family to entrust you with their story?

Dave:

Well, honestly, to start, we were looking for a case that had not been reported on in the way that Day's had. And we reached out to, I think, half a dozen other families and no one really wanted to talk. And that is the most logical response that I think I should have expected in advance. We're talking about relatively recent cases, "Hey, I'm a stranger that wants to do a deep dive into how difficult this has been for you and what's going on with your family after the loss of a loved one." And it didn't go very well. Day's case had gotten a lot of reporting before this film and they did extraordinary in this film, I think really because of who they are and what they decided to do. More than it was about anything of us identifying it, or being able to convince his family to go through with it.

So, when I initially reached out to Day's family, I was in touch with his mom who was the head of the household. Day is one of four kids, raised by a single mom. And I reached out to her. So Tonya and I were in touch and she was a little reluctant, but agreed to be involved eventually. So when we went down to Jacksonville, Florida, where the family was, with a plan to spend five or six days with them to get to know them and get to know Day, and get to know what life was like with him and now without him, it became clear that it actually wasn't Tanya, Day's mom, that was interested in this. It was Day's 17 year old younger sister. 17 at the time, she was 15 when Day passed away, who convinced her family this was something they had to do.

They saw that after Day's death there weren't really any consequences for Bacardi, the host employer. There weren't any consequences for Remedy Intelligence Staffing. They're a division of EmployBridge. There weren't any consequences for them. And life went back to normal for everyone else except them. So they saw this as a real injustice and they saw this happening to other families too. So they felt like it was their responsibility. And [Nea 00:17:36], who, 15 when Day died and 17 when she was in this film, really convinced the rest of her family to be advocates because of what had happened to them, and they didn't want it to happen to anyone else.

So, I was really inspired and I think that's a common feeling people get when they see the movie. It's really an extraordinary young woman who, again, is accidentally in the safety world. This was not part of the plan, and this family's life is so dramatically changed because of their loss. What can they do? Their life is never going to be the same, but they've done so much in giving a face to those statistics, in introducing people to an individual and to a family that lost a loved one in a workplace fatality. I think that goes so much further than just reading some numbers, or reading a story in the paper. And I hope that by watching A Day's Work you really get the sense that you knew Day and you know his family and you know someone that this happened to. So I think that moves us all further along in keeping workplaces safer, and really understanding what's going on out there in the world of work. Because I guess I don't have that insider's view that you guys do, as trained, safety and health professionals.

I really hope you have the sense that every day you're going to work, you're helping to protect families and protect individuals. If you don't, or if you've lost that, I hope this film can make you feel like that again. And I hope it can open other people's eyes to just how important safety and health professionals are to everyone. So I really encourage you to get to know Day, to get to know his sister, Nea, and to know this story.

Jill:

Yeah I've watched the documentary myself and you did a great job. And what definitely resonated is the family story and his sister's bravery in becoming an advocate and wanting to be able to share her brother in a way that will prevent the same or similar from happening to anyone else. And there's just a lot of power in it and absolutely humanizes it. You're right. And takes us away from statistics. And as safety professionals, I would say the vast majority of us get out of bed every day to do our job because of the people that we know that are like Day and their families, and we want them to go home Safely.

Dave:

For sure. And I hope the film can extend that kind of thinking, because personally I think a lot of that focus from safety and health professionals is on creating a safe workplace, creating procedures that protect workers, understanding and identifying hazards. But I hope with the film we can all take a step back and talk about the way that the workplace is changing. You can't go into a situation and expect that the employees had been there for a long time, will think that they're going to be there for a long time moving forward, have had time invested in their training, know what's going on around them, feel safe speaking up about unsafe conditions. So when I look at these changes going on in the whole workforce ... Today you have 3 million people going to work through a temp agency, and that's just-

Jill:

It's huge.

Dave:

... one type of contingent. Flexible nontraditional employment, whether you want to call them contractors or independent contractors or freelancers or consultants or contract workers or temp workers, that big pool of non traditional workers, it's up to about 35 percent of everyone working in this country. And in the next 10 years, that's going to get closer to 50 percent of everyone who is working. So to me that says two things. You're going to have more inexperienced workers who aren't recognizing the hazards that are around them because they don't have the experience or the training. And you're going to have people that are not as comfortable speaking up when they do see something that is unsafe.

So to me, that just says there's going to be an even greater need for safety and health professionals in the future, to be able to recognize where there are workers who are in these positions, to recognize that there are going to be increasingly shortcomings in worker training that someone is going to need to step up and supplement, and to speak out for the workers that don't have a voice or aren't comfortable speaking out themselves because of the threats to their lives. I hope the film is another way to look at those changes in the workplace and how important this field is moving forward.

Jill:

Right. Dave, let's spend a little bit of time talking about why there's such a disparity with the temporary workforce at 35% of our working population right now and, like you said, growing to 50%, why is there such a disparity in what you've determined? Let's talk about kind of the nuances of the law about where safety and health laws lie when you're a host employer versus a temporary work agency or a contracted work agency. Let's talk to our audience about that. Where are the loopholes within the laws that led us to kind of where we are right now?

Dave:

Sure. There's some specifics, and then there's some sort of more general stuff. So thinking generally, the worker's compensation system is set up to, in some ways, incentivize companies that keep workers safer, and disincentivize those ones that don't by driving up their costs.

So when a temp worker is in a situation or someone that is not an employee of the company that's directing the work process, it's changed that whole system of worker's comp and the reasons why it was set up and who it was set up for.

So a temp worker is an employee of a temp agency. The temp agency is the worker's comp policy. They are financially responsible if that worker gets hurts. But the temp agency doesn't own the facility, doesn't produce the products, doesn't direct the work process, doesn't control the working conditions, and this is why we find temp workers in some of the most dangerous and dirtiest jobs that there are. Because the fact is, if they get hurt the company that told them to do it is not financially responsible. The system has just not been set up that way.

So when these financial incentives don't match up with the practical realities, it's putting more workers at risk. When it comes to some of the laws, there can be-

Jill:

Yeah, let's ... go ahead. Great. I was just ... I'm thinking about the OSHA laws and the applicability of the OSHA act to ensure all places of employment are free from recognized hazards, and we all know that, yada, yada, yada. But with application of the OSHA laws, what have you learned? Then, I have a followup question to that.

Dave:

So I'm not sure if the plan is to edit out some of the confused pause, but it's not bad to keep it, because that's kind of the reaction, even to people that look into this stuff all the time. The safety and health situation, the legalities of it are confusing and weird. Because the fact is, overall, labor laws and safety and health laws were written in an era or written in a way that is supposed to make sense of a normal employer/employee relationship. When that's changed and you have subcontractors and temp workers and all these different nontraditional ways of employment, we kind of have to put on these patches to labor law and these safety laws that don't make perfect sense, because the system is different and we really haven't caught up to that yet.

So the solutions, the bigger picture solutions involve changing some of those fundamentals. But there's confusion right off the bat. Originally, when it came to OSHA reporting, we'll take that as one example-

Jill:

Yes, right. Good. I'm glad you're going down that road. I was thinking the same.

Dave:

When a temp worker was hurt on the job, it used to be the temp agency that would report that on their OSHA logs, because they were the employer. Now, we know that would create some problems right off the bat. So if you have one facility or one location or an industry that's experiencing a really high rate of serious injuries, you can't identify that, because it's categorized under a temp agency, which doesn't have that location, which doesn't specify the type of work that's being done or the employer that it was being done for. It gets obscured.

So as part of this temp worker initiative that came out a few years ago, it shifted that record keeping requirement onto the host employer, which from some regard is a big improvement, because we now see exactly where these serious injuries are happening, so we know what workplaces are a problem. In that sense it's improved. But in another sense, it's kind of made it worse for temp workers.

So if you're walking into a temp agency, and most towns, you've got a lot of options for different temp agencies. You know, Labor Ready, versus Manpower, versus Adecco, versus Aerotek, versus ... you've got 50,000 temp agency offices in the US. There's a lot of options. As a temp worker, how do you know which one does a better job of keeping its workers safe, which one provides more training? That gets lost in the data.

Jill:

Mm-hmm (affirmative), it does.

Dave:

And it gets, not just for the worker who doesn't really have access to that info, but also for the host employer, when they're hiring. They don't have a view of the record of that temp agency. So we're kind of caught in a ... I think we've improved the situation overall, but it's still ... you can see that the law isn't really set up the right way.

Jill:

Exactly. And you're right, there have been definitely some, maybe what we might want to call "bandaid attempts" to right that. But it hasn't been righted by way of any kind of legislation yet. It is weird and messy, right? So the temporary agency is paying the worker's compensation rates, the premiums, but the host employer has to log the injuries on the OSHA 300 log. It's not an apple to apple kind of thing.

The other bandaid fix that I immediately come to and that I applied as an investigator when I was with OSHA is this policy that OSHA wrote a number of years ago called the Multi-Employer Worksite Policy. And so as an investigator, when I would do an inspection, whether it was just a routine inspection or an accident or fatality inspection, I was to view all of the parties that were involved, and specifically looking at who the controlling employer was, who the creating employer was, "creating" meaning creating hazards, which employer had the ability to correct those hazards, and which employer were exposing the employees to those hazards. Then, my job was to cite, propose citations against any employer who met any of those four criteria.

That's how I went about my job when it came to, you had mentioned contractors before. It's kind of the easiest way in an OSHA lens to think of a general industry factory site hires a contractor maybe from the construction trade to come in and do something in their workplace, that employee ends up being hurt or killed, who gets citations? Well, the controlling employer, possibly, the creating ... correcting and exposing. And sometimes it's both, sometimes it's three, sometimes it's four. So OSHA has ... the investigators are challenged to use that Multi-Employer Worksite Policy. Then, how does that work with temporary agencies?

Dave:

And thinking about that change in the policy, honestly, to me that sounds like a completely different job. When I think of someone that is an investigator or a safety and health professional, I see someone that is looking at the physical hazards on the ground and determining what in that environment made something unsafe. To me, it seems like a totally different job description and a totally different type of investigation when you're talking about the employment relationships between different companies.

So take someone like Amazon for example. Over the last five years, there have been seven fatalities in Amazon facilities. I say specifically "in Amazon facilities", because none of them were Amazon employees. So often the distribution centers that Amazon has, they might own the physical facility, but then they get a subcontractor to manage all of the work done in that facility, and then that subcontractor hires out to multiple temp agencies below it. So where these seven fatalities have happened over the last five years for Amazon, Amazon the company is never named or cited. So they're in a facility owned by Amazon, they're moving Amazon product in Amazon boxes, because you purchased something on Amazon, but they're not involved in any way. So there wind up being so many of these different layers-

Jill:

Layers, yeah.

Dave:

That I don't know where that responsibility starts and ends. I think that's one of the big problems for these employers as well and for these companies. We can lay out in the law or in a temp worker initiative who is responsible where. So the temp worker initiative says temp agencies are responsible to provide general industry training, and then the host employer where that temp worker is sent provides some kind of site-specific training. How much, how far that goes, how clear both of them need to be, we don't know. It's just kind of some general guidance.

I think that sort of applies in all these different layers of subcontracting. It creates confusion. Who's responsible? And a lot of times when these serious injuries or fatalities happen you've got both of those companies pointing at the other one. The temp agency says to the host employer, "Well, look, we sent someone over. They barely got trained. They didn't get any training." And the host employer says, "Well, you said you were-"

Jill:

"You were supposed to do it."

Dave:

Yeah, and, "You were supposed to send someone over that had some experience with this. I thought that's why we were hiring someone for this job to step in right away." So the system and our workplaces, the way that they've changed over the last several decades, the increase in temp work or subcontracted work, it is completely not for the benefit of worker safety. The ways to get it back into place are just beyond me.

Jill:

Yeah. You're so right with the changing in the employer/employee relationship. It was very, very clearly defined when the OSHA laws were written in 1970, and here we are in 2018 with, like you said, layers and patches to try to figure out, "How are we supposed to figure out who's the employer and the employee?" And so we come up with policies, like I was just explaining, Multi-Employer Worksite, and the more watered down and the more watered down those relationships become, the harder it is to identify who is who and who has what responsibility.

You know, shifting back to the safety profession and the safety professionals who are listening to this, many of whom have temporary employers in their workplaces, how can safety professionals themselves be helpful in being advocates for temp workers?

I'm really interested to know the conversations that you've been having over the years you've been working on this with the alliance. Are you finding sometimes that safety professionals don't always know when they have temporary workers in their facilities? Like, they get hired and they're put on a job and maybe onboarding that would happen with full-time employees that would pass through the lens or through the eyes of a safety professional are being missed? Are you seeing some of that? What are some of the observations that you're learning?

Dave:

First of all, I think safety professionals just need to know sort of the golden rule, and that is, "Treat a temp worker the same way you would treat a permanent worker." There was a case in New Jersey at a distribution center that supplied Arizona Iced Tea and products like that. There was a temp worker that suffered ... had an arm amputated in an injury. So OSHA went in, and in their investigation discovered the permanent employees that were starting off were getting about a week's worth of training and the temp workers weren't getting any. They were just put into the same workplace.

So I think some of what you alluded to there is happening. Safety and health professionals or someone that's a consultant might get brought in to define that training process, and that is done correctly for full-time employees, but temp workers are somehow thought of as different. So I think that golden rule is important.

So after the OSHA investigation, this company then agreed to provide those temp workers with somewhere between one and two hours of training when they started. So they're going to be way safer than they were with none, but they're still getting a small fraction of what those permanent employees are. I think the simplest way to look at it is just that golden rule. But if you want to get a little more specific, there's some great research out of Washington State, their Department of Labor and Industries, particularly by a guy named Mike Foley. Foley, F-O-L-E-Y. He's been studying the temp industry for a number of decades.

Washington State provides this really unique way to look at specifically temp worker cases, and then broadly, to look at a lot of industries, because they're the only state in the country that has no private worker's compensation carriers. Everything is done through that Department of Labor. Plus, you've removed the profitability and the financial incentive for these companies. You can also argue minus, you've got the government involved doing all the administrating of it. But one of the big pluses is you get a really clear view of the data. So you can go in and match up what's happening to temp workers and what's happening to permanent workers in the same exact worksites doing the same jobs at the same age with the same experience levels. So it provides a really clear view of what's going on and the differences between temp workers and permanent workers.

So in investigating a lot of these injuries, they went back and interviewed a few hundred temp workers and permanent workers, matched up based on experience and the type of work they were doing, to try to figure out what's happening different with temp workers and permanent workers.

One of the biggest things that we see happen is temp workers, once they arrive at a job, are often reassigned to a new position or new responsibility. They don't have control over that. As people looking for work, they tend to just say yes and be happy for the opportunity. So people are put in a position that they're not comfortable with and weren't sent over to do, is one of the first ones. And we see that the level of training they get is not the same. So they are often getting something at the temp agency, like you see in a day's work, 15-minute safety video. I've probably seen something very similar in my temp work as well. They're getting less at the temp agency and they're getting less when they arrive at the worksite. So the level of training is not adequate.

And the knowledge that the employer has about that worker's experience doesn't match up. If you were hiring someone directly, you're the one that read the resume. You're the one that interviewed and spoke to that person about their past experience. The temp agency does that and then passes them off to someone that doesn't know the skillset of this worker. So I think when you're driving on the highway and you're driving next to a moving truck, well, that might be an experienced driver and you might be just as safe being next to that truck versus another one. Or, that moving truck could have you or me moving apartments-

Jill:

For the first time.

Dave:

And we don't know what we're doing behind the wheel. At that worksite, the person directing a work process is often in that situation, not knowing the skills and experience of the people that they're working with and kind of taking for granted that they'll figure it out or they must be good enough if they were sent over. So I think that's a lot of what's going on out there.

Jill:

I think one of the things that safety professionals can do is to really arm themselves with more information about the temporary agencies with whom their company is contracting, and to try to get a seat at the table. Because safety professionals don't always have a seat at that employment table when they're deciding which agency to go with and what they might be providing and whose responsibility is what.

I had an opportunity a couple of years ago, there's a local-to-where-I-am group of safety professionals that gets together monthly. I episodically attend their meetings. One of them I attended maybe two years ago was where they had invited in three local temporary agencies, two of whom were national names, one was kind of a homespun local temp agency. The safety professionals in the room were having conversation ... so the temporary agencies were all giving presentations about what they do. Then, the safety professionals in the room were asking them questions about safety and about safety training. What became obvious very, very quickly to everyone in the room was how different the level of training is with each agency, the assumptions each agency had about whose responsibility it was to provide training, and the degree to which the temp agencies were providing training.

It was this, I think to the safety professionals' credit, it was a big "ah-ha" moment to them to say, "Oh my gosh, really? That's all they're getting?" And then some employers in the room, the safety professionals representing some employers were like, "Yeah, I've been talking to some of these companies for years. I don't assume anything. All the temporary workers that come through my facility are having the same training as my employees."

And so it was a mix bag, but the trend was more of a shock as to what the employees were not coming equipped with, and then the temporary agency saying, "We put people in so many different places of employment. How could we possibly understand all of the hazards that are associated with work wherever we're sending people?" Which is a truth. And at the same time, how can safety professionals be really digging into and finding and building whatever relationship they can with those temporary agencies to find out what is and is not happening so that they can be advocates at their place of employment for those temporary workers to say, "Listen, employer, we need to do the same thing. We need to treat all of these people exactly the same way."

Dave:

I couldn't have said it any better myself. It reminds me very much of a similar experience I had, where it was at a statewide conference or meeting for a chapter of the AIHA. So it was local professionals in a network together and talking about temp work.

So often, and exactly as you were describing, you don't know which agencies are doing a better job than others when it comes to training their employees and screening them. Through these professional networks, there really is that ability for safety professionals to share the knowledge that they've accumulated about where they're getting more training from these workers and what agencies are more reliable, which agencies have safety and health professionals on staff.

Jill:

Yes, I wanted to ask you about that. Please keep going.

Dave:

So this emerged as a solution that I had never seen before until I got a little more involved in the safety and health community, going around and screening a day's work. So this really emerged as a solution.

You guys in the safety and health world really are a community. When you're getting together for a lot of these local gatherings or you know other professionals locally, you will have that knowledge and that experience to be able to identify some of the better and some of the worse agencies. We need to shift more of that work towards those better agencies.

Now, I think in the big picture the thing that's going to help most is shifting the amount of work in the whole US economy away from temp work and towards more stable, direct employment. But that's a harder solution and not necessarily one that's going to happen anytime in the near future. But for practical steps that people can take on the ground, it's talking to others in the industry about what they see and who's doing the better job, because if facilities need to use temporary workers, let's make sure that they're coming from the agencies that are doing a better job to prepare them before they go there, the ones that have safety and health professionals on staff, that know how to identify hazards or people that workers know that they can go and report something to.

It's easier to report something to a safety and health professional than it is to someone in HR. We don't always trust that someone that's in HR has our best interests, or a supervisor. So being a place where workers can go is also very important.

Jill:

Yes, it is. Yes, it is. So those are good tips for safety professionals and anyone listening. It would be a fun conversation for safety professionals to have with one another. We all come with different levels of, maybe let's call it "authority", wherever it is that we work as a safety professional.

One truth is so clear with safety pros, is that we are always selling something, selling not by way of monetary gain, but we have to sell an idea. We're pitching ideas and we're often doing it without budget and not always with a seat at a decision making table. So I think the conversation with safety professionals is so important about, "How would you advocate with your management team about why it's important to train temporary workers?" And you've given some really good ideas, specifically with very specific data like Washington Sate is gathering, and just who's responsible in the end so that the safety professional can make those arguments not only from a business standpoint, but also from, like you said before, it's the right thing to do. And to be having those conversations with the temp agencies.

Dave, you had mentioned very briefly about some temp agencies employ safety professionals. I really wanted to know what you found in that. Because, curiously, I don't know the answer to that.

Dave:

Well, I would say anecdotally it seems like in the last five years, approximately since the Temp Worker Initiative, there have been more in-house safety and health professionals at temp agencies.

In the big picture, I think it's kind of a bandaid on a broken arm, where the issues are quite large and have been inherent in this system for many decades. But it's also a step in the right direction.

So the Temp Worker Initiative comes with some recommended guidelines from OSHA and NIOSH. Those recommended guidelines say, "Well, you should have a safety and health person that is on staff that can go to other worksites and assess whether or not they're safe, that can provide good training for these workers. It makes perfect sense. That's how it should be." So I think we're seeing more of that. I don't know how those numbers compare to what's typical for other organizations, but I think there definitely has been a movement in the right direction with some agencies. But you go to plenty of them that don't have anyone with safety and health experience on staff.

Jill:

Dave, can you speak just a little more about the Temp Worker Initiative? How did it get started? When did it get started? How can people learn more about it if they're not familiar with it?

Dave:

Sure. OSHA's website, they specifically have a page dedicated to temp workers. So it's OSHA.gov/temp_workers. It has a number of bulletins that they've issued over the last, let's call it five years. So in part, they were motivated by a number of high profile fatalities that happened. The case of Dave Davis that's profiled in the film is one of them, where they used those cases to really get attention for what was going on in the temp industry more broadly.

The guidelines that they recommended are not the law. The laws really haven't changed to protect temp workers. But they've made some changes in how they investigate incidents and how they might fine companies should there be a serious injury or fatality. So they've clearly defined in their mind what is joint responsibility between employers, they've laid out some best practices for temp agencies and host employers.

So the OSHA Temporary Worker Initiative has created a good blueprint, but fundamentally, the issue still is that these are recommended guidelines. They're not the law. So we still see many instances, often with reputable, big, brand-name temp agencies who are not following these guidelines. A temp agency should know if there are past safety and health violations where they're sending workers. They should know if those have been corrected. They should be inspecting those worksites. And they're not always doing that. Even when they ignore those guidelines and temp workers are seriously injured or killed, the investigations that follow up don't hold them to a standard as if they should have followed those guidelines, because again, they're guidelines and not the law.

So OSHA has done under its regulatory authority, they've taken some steps that make it clear how temp workers should be protected, but it's not the law and we still have a long way to go in protecting temp workers.

Jill:

Right. Right. So the Temp Worker Initiative and the guidance that you've given on that is another tool that safety professionals can add when they're doing advocacy for training temporary workers. So thank you for that. I think that's great.

As you're describing that there isn't a law and it's a best practice sort of thing, my regulatory mind goes immediately to the general duty clause and how OSHA can apply that. If I'm an investigator looking at those things, I would be looking at, "How would I apply the general duty clause to, "if it walks like a duck and sounds like a duck it's a duck"?" To make it extremely simplistic. It'd be curious research as to whether or not the general duty clause has been applied in any of these worker death cases with temporary workers.

I'm wondering, Dave, what has it ... so the film was released initially in 2015, A Day's Work. Talk about who screened it, who's had access to it and kind of what the shift is now for people to be able to access it.

Dave:

The film came out in 2015 and over the last three years I've done screenings at events for about 200 organizations. So it's really been safety and health organizations like the AIHA, the ASSP, the National Safety Council, the National Council for Occupational Safety and Health. It screened with OSHA regional offices and researchers at NIOSH. It screened with labor unions. It screened with safety and health organizations that are local. It's become a big part of university education as well.

There's a system of schools, it's called, like, the NIOSH ERC system. It takes big public health universities and funnels a lot of those students into occupational or environmental safety and health issues and research. So it's become sort of an educational or a training tool for people that work in safety and health or that really work in that labor world where they're seeing these changes in the workplace.

So after now nearly 200 screening events plus some film festivals, the film is now available to the public for the first time, which is a big step in that when you look at the level that it speaks to a lot of these issues and the presentation of the film really told as a family story in a lot of ways, the goal has always been to reach the public and to change perceptions of temp work and occupational safety and health.

So if you work in safety and health or if you're a labor organizer, these issues are really going to speak to what you do every day and you're really going to like this film. And that's great. I'm glad to open some eyes a little further for people that have already recognized some of these issues, or to give people a real inspired sense of why they're doing the work they're doing and how important it is. But that's just playing for the home team. The real test is, "Can we change other people's minds about this?"

I think when I was coming to this as an outsider and being shocked by the number of fatalities and injuries that take place every year I wanted other people to know that, to feel the same way about it that I did. When we were doing the filming in 2014, at the time, which it didn't make the film because the numbers kind of changed, but in 2014, 12 years after the start of the war in Iraq and Afghanistan, the number of fatalities in any given year in the US on the job was greater than in those wars combined for the 12 or 13 years leading up to that.

Jill:

Right? Isn't that crazy? I've heard that statistic, too.

Dave:

The level of concern or awareness or outrage or value placed on those lives is so dramatically different, because of where and how those circumstances happen. I'm not trying to compare one to the other. I'm just saying-

Jill:

Absolutely.

Dave:

I think more people, if they were aware of how big these numbers were and how much of a problem this still is today, I think we could change the culture of how people value safety and health training, how far the law goes in specifying what needs to be provided. Do we start to rely on other institutions to provide more training? Is this more part ... does occupational safety and health training need to be a part of a high school education or a trade education?

I hope this film, now that it's available to the public, which you can find at tempfilm.com, it's also on Amazon and Vimeo, I hope it can just start to change public perception, because it's great to play for the home team, in the safety and health world and the labor world it's really a hit, but we're trying to change minds and change the culture.

Jill:

That's exactly it. As safety professionals, we often get another cliché that's passed our way, is, "Oh, that's the safety person's thing to worry about. Oh, we have the safety person, that's their job," as if once ... as if the safety professional has this magic wand that if they're doing their job or they're present that everybody is going to be okay, when in fact the responsibility is with each individual to perform the way that we want them to perform when no one's looking. And the only way they can do that is if they have the background, the knowledge and the training that gives them the ability to advocate for their coworkers and themselves to go home the same way they arrived at the beginning of every day.

Dave:

Amen.

Jill:

And the fact that the general working public don't often understand how many people lose their lives or their livelihood and can't do their job because of workplace hazards is something that just isn't shared widely. People don't know about it. Those of us in the safety profession understand it so well and on such a visceral level.

If you've been in the business for any amount of time you know that and feel it. I've been in safety for over 23 years. As I travel my home state, because of the work that I did early in my career I'm always passing by what I called "hallowed ground". If you talk with other safety professionals, they'll tell you similar stories. Like, I can't drive past certain areas in certain communities without immediately being transported to where someone lost their life.

It's something that people don't always know and the working public themselves don't always know. So the more that we can bring those stories to life, like Dave's story and other stories that other safety professionals carry with them, the more we'll be able to move the dial.

Dave:

Yeah. And I hate to add to that hallowed ground point, but if you're feeling a little stressed or emotional about it, don't go for the Bacardi, go for the Captain Morgan, because when I see that Bacardi bottle everywhere, obviously I can't help but think of this family that I know.

Jill:

Right, exactly. Exactly. I have those same moments. Then, there are so many employers who do an outstanding job. They have safety professionals who are doing outstanding, outstanding jobs. I had the opportunity a couple of years ago to collect a story that started in my career when I was really young in safety and I was investigating the death of this man named Nick. He was run over by a bulldozer at work.

He wasn't a temporary worker. He lost his life on the job. And there were a lot of people who were dying on the job by mobile earthmoving equipment in the area where I was working.

I was seeing these fatalities occur and I thought, "Gosh, something has got to change." And I didn't have any citations, because there weren't any laws I could apply to his exact work scenario at that time. So I decided to partner with a coworker of mine who had worked in the construction trades as a heavy equipment operator himself, and we proposed a new law that was eventually adopted by the legislature to prevent that kind of death.

So that happened in the early 90s. Then, fast forward many, many years, I was thinking about ... I wanted to tell the story about what happened. I was really curious to know, like, what did the employer do and what happened to his family. I decided to just approach them, just like you did with Dave's family, and ask if the employer themselves would be willing to talk about what happened at their workplace and the aftermath. And I also contacted Nick's widow for the first time.

When you work with OSHA, you don't get to talk with family members. You're prohibited from doing that. They want you to stay neutral. So I reached out to his widow and found where she was living with their daughter who was five, turned six the day after her dad died, and the employer, who remembered me as "that OSHA lady" in a really small business.

Dave:

Not always a good thing.

Jill:

Well, no, it's not always a good thing. Sometimes "that OSHA lady" really has a very negative moniker. But that employer had done these crazy, wonderful things with safety and became these fierce advocates for employee safety, not only for their own employees, but for trade groups. They had just done remarkable things, and they had no idea that the law that I had proposed and cowritten and was passed that they were complying with had anything to do with Nick, their employee, until I came back all these years later.

So it was really fun to bring ... "fun" in that ... "fun" is a loose term there, it was really interesting to bring all those parties together to say, "This man's life, tragic as it was, was not for ... people changed the way they did their work and it changed the landscape of the whole state for people doing the type of work that Nick was doing." So those employers exist, they're out there, and it's very wonderful to tell their story.

Dave:

That's really an amazing story, and really impressive. I hope as many listeners are still on as started and spent so much time listening to me that they caught that, because that's really incredible. I'm really happy to have met you and to have heard that.

Jill:

I get to tell Nick's story as a keynote address all over the country. I've been doing it for a couple of years. Every time I tell his story I send a quick text to his wife and let her know that I'm telling their family's story again.

I'm wondering, is that similar for you with Dave's family? What's your relationship with them like now?

Dave:

I mean, frankly, it's been a mix. In part, I've taken some great joy in being able to share with them all the places that I've been able to go with this film and with their message. I think the people they've been able to reach with this story is really impressive when you talk about, you know, this is one family in Jacksonville, Florida that is now holding the attention and speaking for about an hour to OSHA inspectors across the country, to the NIOSH researchers, to safety and health professionals on the ground, to young leaders in the workplace, all over.

I see that and I think it's so amazing, and I'm excited to share these places that it's reached. And I don't think they have that same joy with it yet. I'm trying to get it there. Because to them I think in Jacksonville and their community at Bacardi and at Remedy Intelligent Staffing where this happened, everything is still the same. Making this film, my goals were bigger than getting it just in the safety and health world, and their goals were a lot bigger, too.

So even after three years I can give a long list of the places it's been, I think it's impressive. But what have we really changed at this point?

Jill:

So you're just getting started in a manner of-

Dave:

Yeah. I mean, in particular, we've done a lot of university screenings with I think the next generation of safety and health professionals, who to them these fissured, fractured, subcontracted workforces are going to be the norm. I think we've done a lot to shape how they see things and how they're going to design systems in the future to help keep these workers safe. So I think they have made a big difference. But can they walk out of their door and see that in Jacksonville? No.

Jill:

No, not yet. Yeah.

Dave:

We've done nothing over the last many decades but continue to see the temp industry grow, continue to have these really high rates of injury and fatality for temp workers, and we're really in the early phases of this struggle. Personally, I think we still need to create some awareness before we have the energy for action. So I hope the film and their work can be a part of that, but we've got a long way to go.

Jill:

We do. We do. There's a lot of work left to do, and the safety profession can definitely collectively lay our hands on that to change that.

Dave:

And going back to what you said, I think you wanted to admit that talking about this was at times fun, I think that's all right to admit. I have a great time with this. I hope that some of the folks listening, too, because I don't know if there are a lot of professions in the world where you can walk away really feeling like you helped protect someone's life, someone's livelihood, someone's family, but you all have. It's really been a great joy to be invited into this safety and health community and to be a part of the discussion.

Jill:

Thank you so much, Dave. As we wrap our time together today I'm curious, do you have plans for any more documentaries?

Dave:

Yeah, there's one in the works. I'm not the lead on that project. I'm helping some other folks that have already started a film. But there is one called The Company We Keep. That'll be ou