Safety in the GIG economy
How to protect temp workers — and how to gig for yourself
A 65-year-old temp has one finger amputated and suffers severe damage to another when his left hand is caught as he operates a machine for a Nebraska flooring materials company. OSHA inspectors discover numerous machines lacking guards.
Two temp workers are hired to cut and weld pipes for a wastewater storage tank in Moss Point, Mississippi. They have no idea and have received no training to know that the tank beneath them contains explosive methane and hydrogen sulfide gases. The tank explodes. One of the temps dies and the second is hospitalized with a fractured skull, internal injuries and broken bones.
This is the dark side of the gig economy, revealed through OSHA investigations. Temporary gigs, short-term assignments lasting days, weeks, months or sometimes longer, can be found more readily than full-time jobs with benefits for hundreds of thousands of workers. Temp jobs reached an all-time high of 2.9 million in May, 2015, according to the U.S. Commerce Department. “Temporary worker” covers a lot of people. The U.S. Bureau of Labor Statistics defines a temp as someone paid by a staffing agency and supplied to a host employer. The gig economy expands when self-employed, independent contractors, freelancers and part-time workers are included.
By 2020, more than 40 percent of the U.S. workforce will be so-called contingent workers, according to a study by software company Intuit. That’s more than 60 million people. This is the new normal. Three-quarters of economists surveyed by the Associated Press believe the growing use of contract and temp workers has become an established, entrenched business model. And these are not your father’s temps – white-collar office help.
“Many owners have tried to offload riskier jobs to contractors for many reasons: to boost their profitability, to focus more on core work, and to boost their own safety statistics. The owner then may rarely count or keep track of the contractors’ overall safety statistics. Also, the owner firm is often misleading itself about the ability to ‘lay off risk’,” one veteran EHS pro tells ISHN.
Blue collar temps
Manufacturing is swamped with temps. It’s estimated one-third of temps land jobs on assembly lines, stocking warehouses, operating and repairing machinery, and driving forklifts, for instance. In factories across the South and Midwest, temps assemble auto parts for companies like Nissan and BMW, working alongside permanent employees.
Beyond manufacturing, a review of OSHA enforcement cases shows temps working in construction trenches and up on roofs, welding, collecting garbage, and laying pipelines and underground utility lines. Gigs for temps, independent contractors and the self-employed encompass almost any form of manual labor – “giggers” mow grass, assemble pizza boxes, package razors, clean hotel rooms, drive delivery trucks and handle facility maintenance.
OSHA worries that some employers use temps to avoid meeting compliance obligations – providing safety training and personal protective equipment (PPE) for example. OSHA boss Dr. David Michaels has made temp safety a priority issue, stating, “Many employers decide to forgo important safety training for their temporary employees that would normally be given to permanent employees. Employers hire temps to save money. Safety training is a cost of doing business, so some employers just skip it or assume that the staffing agency has handled the training.”
“Staffing agencies generally only worry about the revenue they are making off of one of their contracts, and, generally, don’t care about the safety of their employees, and to my knowledge, very few staffing agencies offer safety training, and I have personally worked for two of them,” an EHS pro tells ISHN.
OSHA calls many of these “giggers” vulnerable. In Canada, temp work is often referred to as “precarious work.” Who’s got the back of what one company calls “independent disaggregated workers”?
Taking on risks
It’s a question that needs answers. An analysis of data from workers’ comp claims in California, Florida, Massachusetts, Minnesota and Oregon during a five-year period found that the incidence of temporary worker workplace injuries was between 36 percent and 72 percent higher than that for non-temporary workers, according to a study by ProPublica.
Temporary workers also are disproportionately clustered in high-risk occupations, the research found. Temporary workers were 68 percent more likely than non-temporary workers to be working in the 20 percent of occupations with the highest injury rate as measured by the U.S. Bureau of Labor Statistics.
The Alliance for the American Temporary Workforce (www.temporaryemployees.org) was founded by Dave DeSario about eight years ago to bring attention to the size of the temp nation and inequalities facing temps, such as receiving 22 percent less pay for the same work, being 80 percent less likely to receive any health benefits, instances of wage theft, and having no way of knowing staffing agencies with good or bad records of safety, pay rates and conversion to full-time work, according to the alliance.
DeSario has produced a one-hour documentary, “A Day’s Work,” which is currently touring the country and chronicles the investigation into the death of Lawrence “Day” Davis, a 21-year-old temp crushed by a palletizing machine on his first day of work at a Bacardi bottling plant in Florida.
“Many of the issues surrounding temporary work such as pay are controversial,” says DeSario. “I made the film because temp safety is something there should be no arguing about.”
Feeding the “rat race”
“It’s a rare staffing organization that has any institutional understanding of safety,” says safety consultant Chip Dawson.” If they do anything, they assume that an hour of safety tips is all that’s necessary and send their folks off to the rat race. I’ve seen temps who are injured on one job, sent back to the staffing organization and sent right out again to another company where they get injured again. The staffing organization doesn’t jump on the employer; they just can the temp for not being safe.”
In one enforcement case, a temp asked for a safety harness while working on a roof and was denied. He fell 12 feet through the roof and was hospitalized with fractured arms and severe contusions.
In another, after receiving an anonymous telephone tip, OSHA initiated an inspection in Pennsylvania and found workers and temporary workers working in a trench as deep as 18 feet without cave-in protections.
OSHA fears many temps remain silent about hazardous working conditions because they see themselves as disposable commodities quickly replaced if they raise complaints or concerns.
“Temps are babes in the woods with no one having their backs,” says Dawson. “When regular employees are afraid to speak out, can you imagine a temp having the courage to say ‘that’s not right’ and face being sent back to the temp agency where they are labeled a trouble maker and dropped from the ranks. Far too many temps have no idea what they are getting into.”
“Non-standard work arrangements” often lack safety and health protections for several reasons. OSHA can’t be everywhere. Without job security, many temps won’t speak out about hazards or risks stating that they lack experience or don’t understand an assignment. As evidenced by OSHA enforcement actions, many employers of temps are small companies without full-time safety staff. Often the “hosts” are located in rural, remote regions – out of sight and out of mind. Larger firms sometimes deny accountability for “giggers,” obfuscating their responsibilities behind layers of contractors and subcontractors. And for years there have been communication breakdowns, confusion and misassumptions between staffing agencies and host employers over who’s responsible for the safety and health of temps.
Mutually assured protection
OSHA’s answer: it’s a two-way obligation, with both agencies and host employers having responsibilities. In 2014, the agency issued a memorandum to its regional administrators stating, “In general, OSHA will consider the staffing agency and host employer to be ‘joint employers’ of the worker… as joint employers, both the host employer and the staffing agency have responsibilities for protecting the safety and health of the temporary worker under the OSH Act.”
OSHA says its compliance officers should review any written contract(s) between the staffing agency and the host employer and determine if it addresses responsibilities for employee safety and health. The extent of each employer’s obligations varies depending on workplace conditions and can be clarified by their agreement or contract. Duties sometimes overlap. The staffing agency or the host may be particularly well-suited to ensure compliance with a particular requirement, and may assume primary responsibility for it.
The host employer typically has primary responsibility for determining the hazards in their workplace and complying with worksite-specific requirements, according to OSHA. Staffing agencies must ensure they are not sending workers to workplaces with hazards from which they are not protected or on which they have not been trained. Agencies have a duty to diligently inquire and determine what, if any, safety and health hazards are present at their client’s workplaces.
Prior to accepting a new host employer as a client, or a new project from a current client, both parties should jointly review task assignments and any job hazard analyses to identify and eliminate potential safety and health dangers. OSHA says a staffing agency may perform, if feasible, an inspection of the workplace to conduct its own hazard assessment or to ensure implementation of the host employer’s safety and health obligations.
Communication between the host employer and staffing agency is fundamental, according to OSHA. If a temporary worker is injured at a host employer worksite, the host employer should inform the staffing agency of the injury, and the staffing agency, in turn, should follow-up about preventive actions taken. Similarly, if a staffing agency learns of a temporary worker’s injury (perhaps through the filing of a workers’ compensation claim), the staffing agency should inform the host employer to help ensure that preventive measures are taken before additional workers are injured.
“Communication is normally never even started, because the contract negotiation occurs between different people, and the owner just tells his organization who is coming and at what time,” an EHS pro tells ISHN. “When it comes to communications, very little is actually in place and if there is some communication, there are many chances for a break down. I would say this can all be prevented, but it takes a staffing agency or firm that cares about employee development – even for someone who could leave or depart at any time.”
“Absolute Zero” is a safety program launched by Kelly Services, one of the nation’s largest and oldest staffing agencies at least five years ago, Dave Kasab, senior director of safety, health and environment, tells ISHN. Kelly employs 17 full-time safety professionals, 3 with CSPs and one with the CIH. The idea for aiming for zero accidents came from one of Kelly Services’s clients. “Of all the thousands of companies we do business with, this customer really stands out when it comes to safety,” says Kasab. He says others speak the game but don’t walk the walk. Kelly can’t command its clients what to do for safety onsite, but decided it could offer the best practices of one of its best clients.
“We approach some customers with Absolute Zero and they say, “We can’t believe you have this program. Some customers really embrace safety,” says Kasab. “Others have the attitude: ‘Why are you asking us safety questions, OSHA questions?’ We have high expectations when it comes to customers’ safety commitment,” says Kasab.
Absolute Zero is not for everyone. Kelly’s largest customers with the most mature safety and health programs have the right sort of culture. A lot of companies are driven by post-accident metrics, says Kasab. It’s the companies beyond that world who are ripe for Absolute Zero. “Their recordables are so low, it comes down to how do you stop that one injury from happening? They’ll have one cut to the finger and spend a week on the investigation, flow charting it. These customers are really sophisticated when it comes to safety,” says Kasab .
Kasab, who has worked in safety for Fortune 500 companies, says he’s never worked for a firm with higher ethics than Kelly Services. He recounts the time a client had a temp suffer an injury on site, and would not allow Kelly to come onsite. Management immediately pulled the business from the client, even though hundreds of Kelly temps worked there. “If our safety department says, ‘We think the client’s safety is bad,’ the business is pulled,” he says.
Next up for Kelly is designing a safety management system. “We want to be more systematic, more consistent,” says Kasab. “It’s a lot easier when you control the facility. We don’t have systems to check that everything is being done right every time. We’ll do this in the next couple of years.”
Finger-pointing between staffing agencies and host employers is most often what OSHA inspectors come across when in workplaces where temporary workers are used for manufacturing and production jobs. This is not the case often with administrative temp hires in areas like human resources, according to sources contacted by ISHN.
But with more risky jobs, the host often points at the staffing agency and claims the agency is responsible for temp worker safety. Agencies, meanwhile, argue they are simply supplying manpower. This is more the case with smaller agencies and smaller host employers.
For years OSHA inspectors have often had difficulty trying to decide if a staffing agency or the host employer, or both, were responsible for violating standards. In the period 2008 to 2011, inspectors complained that the many varieties of staffing relationships made their job harder. OSHA lawyers were asked to help sort it out, and come up with questions inspectors could use to clarify situations in workplaces.
Inspection questions included: Who makes the assignment? Who does the supervision? Who can discipline and fire temps? Who do employees consider their boss? Inspectors would go through this list, sometimes responsibilities were clear, sometimes not. If not clear, inspectors often cited both parties, saying safety is a joint responsibility. Details could be resolved in settlement proceedings.
Inspectors find communication breakdowns between agency and host often involve hazard communication and PPE training. OSHA considers these a shared responsibility. The staffing agency is responsible for basic hazcom 101 type training and PPE training. The host provides site-specific hazcom training and PPE training. But sometimes the host expects temps to arrive onsite fully trained. Training responsibilities can get particularly dicey when contracts call for temporary workers and also temporary supervisors. Are temp supers responsible for the training of temps?
OSHA expects a host hiring a group of temps to implement safety practices. The staffing agency is expected to meet with the host prior to temps arriving onsite, do a walk through, find out what the hazards are, what is the level of protection, and work out safety agreements with the host through conversations and perhaps the written contract. OSHA does not want temps to arrive in the cross hairs of safety -- with neither the host nor the agency having fully trained them.
Inspectors find a wide disparity among host employers and their commitment to safety. In many cases, sources say there are very good host employers out there; then there is a large group in the middle just trying to get by with little knowledge of their safety responsibilities. Many host employers hiring temps just don’t know enough --they assume a temp will be fully trained upon arrival. OSHA inspectors find “the bad ones” that “really don’t give a damn, just take what temps they can get,” are few and far between.
The same holds true in inspectors’ eyes for the nation’s 17,000+ staffing agencies. Some are top notch and on top of their safety responsibilities; some don’t care; and again a large group in middle want to do the right thing but need help.
Answers provided by Stephen C. Dwyer, Esq., ASA general counsel
How many ASA members have staff safety and health personnel overseeing safety training and preparing employees to work safely with host employers?
Although we do not know how many ASA members have staff exclusively devoted to safety, our members have access to, have been trained on, and have extensively utilized ASA and OSHA resources to help ensure the safety of temporary and contract employees placed on assignment.
Why was it important for ASA to enter into the partnership agreement with OSHA? Does ASA have the same concerns OSHA does about temporary worker safety?
OSHA and ASA share the same goal of improving worker safety and well-being, and, thus, it was a natural partnership. Our alliance has resulted in staffing companies and clients becoming better informed about their respective safety obligations.
What are the most important steps onsite host management must take to ensure the safety of staffing agencies’ employees?
In the vast majority of cases, staffing clients supervise assigned temporary and contract employees. As a result, they must treat these workers—with respect to safety issues, such as site-specific training, provision of personal protective equipment, and recordkeeping—the same way they would treat their own employees.
Will ASA members drop clients who do not make a commitment to safety, who do not have safety programs or full-time safety personnel?
Yes. And ASA members will refuse to engage with prospective clients that fail to show high regard for worker safety.
How do staffing agencies help their employees become familiar with client’s work environments, safe work practices, emergency procedures and protective equipment?
Under the law, staffing companies have a general duty to provide generic safety training and to ensure that clients provide appropriate site-specific training, personal protective equipment, etc. Staffing companies often use written contracts to ensure that clients provide the foregoing, and communicate with clients and temporary and contract employees regarding safety issues over the course of assignments.
How do staffing agencies avoid communication breakdowns with onsite management over joint responsibilities for safety and health commitments?
Staffing companies can avoid such breakdowns by clearly setting forth the parties’ responsibilities in a written contract, before temporary or contract employees are ever assigned to client worksites. Both parties should communicate to ensure that those responsibilities have been carried out. Staffing companies should also communicate with their temporary and contract employees regarding, and encourage such employees to raise, any safety issues that may arise while on assignment.