OSHA moving forward on its liberalized joint-employer standard

Last month, we reported that OSHA was looking to expand employers’ joint-employment liability for workplace safety violations, similar to how the NLRB expanded this liability for collective bargaining obligations and unfair labor practices.

Now we have some meet to put on that bone.

From OSHA:

Twice in 14 months, MooreCo Inc. temporary workers were seriously injured when inadequately guarded machines pulled them in, removing skin from the wrist up to the shoulder in the most recent incident, and from the wrist down in an earlier incident. As a result of the earlier incident, the employee’s fingertips were also amputated.

Following a U.S. Department of Labor Occupational Safety and Health Administration inspection, the agency cited MooreCo on Nov. 12 for three repeated and six serious violations and placed the company in its Severe Violator Enforcement Program. OSHA cited repeated violations for exposing workers to moving machine parts and failing to shut down machinery properly. The serious violations involved failing to conduct periodic inspections of energy control procedures to ensure machines would not start up during servicing; using personal protective equipment for corrosive chemical splashes; and repairing recognized electrical hazards….

The agency also cited Manpower Group US Inc., the temporary staffing agency providing MooreCo with workers, for one repeated violation for failing to provide machine guarding.

Like the NLRB before it, OSHA seeks to determine whether two entities are joint employers based not only actual, direct control, but also on indirect un-exercised potential control over working conditions. Moving forward, franchisors, general contractors, parent companies, and staffing agencies all must consider whether they are on the hook for the safety violations of those in which they are engaged in arms-length business transactions. If you are engaged in one of these business relationships, it is imperative that you review your agreements to ensure that you are protected going forward from the possibility (probability?) that you are a joint employer. From an OSHA perspective, this means ensuring that representations and warranties are in place that cover OSHA compliance, and appropriate indemnity is provided in the event of OSHA violations.