CWS 3.0: September 17, 2014

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Cal/OSHA reverses course: staffing firms liable for injuries

Last month, the California Division of Occupational Safety and Health (Cal/OSHA) overturned a nearly three-decade precedent that shielded staffing firms from liability if their temporary employees suffered injuries while under the client’s supervision.

The Aug. 28 ruling made the staffing provider jointly responsible for the 2010 accident suffered by a temporary machine operator whose fingers were cut off in a chain-and-sprocket mechanism while trying to clear jammed bottle caps from a filling and capping machine.

While the ruling puts the staffing firm back on the hook for temp worker safety, the buyer is not absolved of responsibility. Cal/OSHA cited Staffchex, the staffing firm that placed the worker, for the accident, as well as the secondary employer, Aware Products.

"This [ruling] raises a host of new issues for staffing firms and their clients," says Dale Debber, publisher of Cal-OSHA Reporter. "Not only does it put the staffing firms squarely on the hook for safety, but it raises issues in terms of the contractual relationships between the staffing firm and the their clients." 

The Precedent. Staffchex tried to use the defense created by the 1985 ruling in PEMCO II (Petroleum Maintenance Co.). In it, the Cal/OSHA Appeals Board created a specific defense for primary employers or (staffing firms) that contracted away their ability to effectively supervise employees. Since then, staffing firms or PEOs in California that could meet a four-part test were not considered liable for injuries.

Last month’s Staffchex decision effectively eliminates that test as a defense from responsibility for temps’ safety, Debber notes. The decision is critical because it sets a new legal precedent and changes the liability of California staffing and other primary employers who assign their employees to others.

The rising use of temporary workers is cited in the reversal. The board notes in its decision that temporary employment and the number of employees used via a staffing company have increased significantly in the past three decades.

“Nearly 30 years have passed since the board promulgated the rule found in PEMCO II, and [staffing and] temporary … employment has increased sharply,” the precedential decision finds. “This affirmative defense has led to complexity and confusion, when the intent of the act is plain. The board finds that PEMCO II is not consistent with achieving the goal of each employer furnishing a safe and healthful workplace in all circumstances, and so finding, declines to recognize the defense found therein.”

In Staffchex, the board reaffirms that the California Occupational Safety and Health Act mandates that every employer has a non-delegable duty to its employees to provide a safe and healthy place of employment.

The U.S. OSHA has increased its focus on temp worker safety, launching an initiative in 2013 to help protect temporary workers from workplace hazards