Temps, Contractors: Not on Your Payroll, Still Your Problem
Independent contractors, subcontractors, and temps can be useful to employers in many ways.
They can bring expertise to special projects or tasks, fill labor gaps created by vacations or illness, or provide flexibility to cover production peaks and valleys.
Either way, temps and contractors are brought on board to solve problems, not create new ones, so it can be surprisingly easy for them to slip through the cracks in your safety program. After all, you’ve checked that box and don’t really worry about it on a regular basis.
Attorneys Carole Briggs and Mark Soycher addressed this issue in a breakout session at the 2016 CBIA Safety & Health Conference.
Briggs, of Perlstein, Sandler & McCracken LLC, has more than 25 years of experience handling private sector and commercial transactions, business and finance, construction, OSHA regulations, municipal law, and dispute resolution.
Soycher is CBIA’s HR counsel and has more than 30 years of experience guiding Connecticut employers and employees through the maze of laws and regulations affecting the workplace.
Where’s the Risk?
Non-payroll workers can create a safety risk because they are sometimes taken for granted.
Contractors are expected to bring safety with them—they’re trained specialists who can take care of themselves—while temps can blend into your workforce, where the assumption is that they will be as safe as the permanent workers around them who handle similar tasks and have already been through your safety training.
But what do you really know about your contractor’s safety knowledge and/or training history?
And does your onboarding process include safety training for a temp who has arrived at your worksite a week after your permanent employees have completed a required training session?
Temporary employees are defined by OSHA as workers who are hired and paid by a staffing agency, and they are entitled to the same protections (under OSHA) as all other covered workers.
A contract with a temp agency should be used to define the agency’s responsibilities with regard to training.
OSHA, however, will treat you and the agency as joint employers according to its 2013 Temporary Worker Initiative, and that contract cannot be used to discharge either party’s obligations under OSHA.
The key is to ensure that OSHA would not be able to tell the difference between your temporary employees and your permanent ones.
Contractors present a more obvious safety challenge: They are often brought in to do work that cannot be capably (or safely) handled by your own staff, such as a construction project or equipment installation.
Injuries are the most frequent cause of difficulties in these relationships and could expose you to a workers’ comp claim under the multi-employer worksite doctrine if you have not met all the requirements for establishing that the injured party is not your employee.
On the other hand, if you have properly established a worker’s independence, you may avoid the workers' comp issue but can expose yourself to a civil lawsuit for negligence or be the subject of an OSHA retaliation complaint if you have released someone from a contract after fielding their complaint.
Subcontractors are generally hired to perform a specific task under an existing contract and will not be filling the role of the contractor’s employees, so there are fewer risks.
The key here is to make sure your contract requires the subcontractor to carry its own workers’ compensation insurance.
The takeaway: Feel free to use non-payroll workers creatively, but understand that it can be rough terrain that is best navigated with full knowledge of each type of relationship and its unique risks.
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