U.S. DOL OSHA and Wage and Hour Division

1. U.S. DOLOSHA and Wage and Hour Division Kevin G. Kilp Area Director OSHA Harrisburg Area Office Jane E’del Wage and Hour Investigator WHD Harrisburg District Office

2. OSHA/WHD As an organization with diverse functions, DOL carries out its mission through a number of offices and agencies. These are organized into major program areas, and headed by an Assistant Secretary or other official • The Wage and Hour mission is to promote and achieve compliance with labor standards to protect and enhance the welfare of the Nation's workforce. • OSHA's mission is to assure the safety and health of America's workers by setting and enforcing standards; providing training, outreach, and education; establishing partnerships; and encouraging continual improvement in workplace safety and health.

3. OSHA/WHD While our individual missions seems to be different, they are in fact fundamentally the same…to protect the American worker. In recent years our agencies have been working closer to share information, make referrals, and assist in joint investigations.

5. Safety Best Practices OSHA and Wage and Hour Division Update Temporary Worker Safety and OSHA’s Temporary Worker Initiative Kevin G. Kilp, Area Director OSHA Harrisburg Area Office October 28, 2014

6. Introduction • The changing workscape • How a temp worker workforce impacts safety and health • Cases in the News/Metrics • OSHA’s Temporary Worker Initiative • Responsibilities of host employers and staffing agencies • OSHA – NIOSH Recommended Practices

7. The Changing Workscape In 1956, there were only about 20,000 employees in the employment services industry, and the industry’s primary focus was to place employees in clerical and factory positions that involved routine or repetitive tasks. Source. Bureau of Labor Statistics

8. The Changing Workscape • By the early 1970s, (when OSHA was created) the number of workers in the temporary help services industry had grown to approximately 200,000 <0.3% of the workforce • By 1990, the industry comprised slightly more than 1 million employees 1.0% of the workforce Source. Bureau of Labor Statistics

9. The Changing Workscape • During the 1990–2008 period, employment in the temporary help services industry grew from 1.1 million to 2.3 million • More workers in higher skill occupations • Employment in this industry is very volatile - temporary workers are easily hired when demand increases and laid off when it decreases Source. Bureau of Labor Statistics

10. The Changing Workscape TODAY…. • The temporary workforce continues to grow rapidly • 3.0 million people are employed by staffing companies every week • 11.0 million temporary and contract employees are hired by U.S. staffing firms over the course of a year • 79% of staffing employees work full time, virtually the same as the rest of the work force. Source : American Staffing Agency

11. Impact We’ve known for decades that NEW employees are at greater risk. Why? LACK OF TRAINING • Many temp employees are new to a jobsite several times in a year • Some employers do not want to spend the resources to train an employee that will only be there a few days/weeks/months

12. Impact Other concerns: • Some employers use temp workers to avoid meeting compliance obligations (OSHA and others) • Temp workers are often placed in the most hazardous jobs • Temp workers are more vulnerable to (and fearful of ) retaliation • Language Barriers

13. Cases in the News

14. Bacardi Findings • Two (2) Willful • Control of Hazardous Energy (LO/TO) procedures/training • Nine (9) Serious • tripping, fire, egress, struck-by (falling bottles), LO/TO, PPE, compressed air • Total proposed penalty = $192,000

15. Cases in the News

16. Maplewood Beverage LLC Findings • One (1) Willful • failure to provide annual audiograms • One (1) Repeat • machine guarding • 17 Serious and two (2) Other • Total proposed penalty = $54,450

17. Corporate Resources Services Findings • Two (2) Serious • failure to conduct a hazard assessment of the workplace • failure to ensure that each employee was informed of the effects of noise on hearing and inform each employee about hearing protectors. • Total proposed penalty = $11,000

18. Cases in the News US Department of Labor's OSHA cites 5 companies following December 2013 fatality of temporary worker at Amazon fulfillment center in Avenel, NJ AVENEL, N.J. — On Dec. 4, 2013, temporary worker Ronald Smith died from injuries sustained after he was caught in between a conveyor system and crushed while performing sorting operations at an Amazon fulfillment center in Avenel.

19. Amazon - Avenel, NJ Following an investigation initiated in response to the fatality, the U.S. Department of Labor's Occupational Safety and Health Administration has cited five companies for serious violations, including the contractor responsible for operating the facility, and four temporary staffing agencies.

20. Amazon - Avenel, NJ Third-party logistics provider Genco, based in Pittsburgh, was contracted by Amazon to direct the temporary employees from four staffing agencies involved in sorting operations. The employees were required to monitor the conveyors and sorting machine to ensure packages were positioned properly while traveling over the conveyor and sorting belts

21. Amazon - Avenel, NJ Findings One (1) Serious violation issued to Genco and to each of the four (4) staffing agencies: • The Corporate Services Co.; • Corporate Resource Services Inc. dba Diamond Staffing Services; • Remedy Intelligent Staffing Inc., dba Selective Staffing; • Staffmark

22. OSHA’s Temporary Worker Initiative April 29, 2014 Memorandum to the agency's Regional Administrators directing field inspectors to assess whether employers who use temporary workers are complying with their responsibilities under the Occupational Safety and Health Act.

23. OSHA’s Temporary Worker Initiative Inspectors will use a newly created code in their information system to denote when temporary workers are exposed to safety and health violations. Additionally, they will assess whether temporary workers received required training in a language and vocabulary they could understand.

25. Metrics FY 2014October 1, 2013 – September 30, 2014 Nationally • 944 inspections conducted involving temporary employees exposed to hazards • 626 of these resulted in citations • 87.2% of these inspections resulted in Serious, Repeat or Willful citations • Proposed penalties > $11.8 million • 32 were fatality/catastrophe inspections

26. Metrics FY 2014October 1, 2013 – September 30, 2014 OSHA Region III • 103 inspections conducted involving temporary employees exposed to hazards • 68 of these resulted in citations • 86.8% of these inspections resulted in Serious, Repeat or Willful citations • Proposed penalties > $570,000 • 1 fatality inspection

27. Most Frequent Violations • Electrical • Control of Hazardous Energy • Machine Guarding • Fall Protection • Hazard Communication • Powered Industrial Trucks

28. Responsibilities of host employers and staffing agencies • Host employers and staffing agencies are jointly responsible for maintaining a safe work environment • BOTH employers may be held responsible by OSHA for violative conditions • ALL workers have a right to a safe workplace, regardless of the duration of their employment

29. Responsibilities of host employers and staffing agencies BOTH EMPLOYERS HAVE ROLES • Key Concepts: • Who is in the best position to prevent and correct hazards? • Who is in the best position to ensure compliance with OSHA standards? • Host/Agency communication is vital

30. Responsibilities of host employers and staffing agencies Staffing Agencies have a duty to inquire into the conditions of the workplace and verify that the host has fulfilled its’ responsibilities to provide a safe workplace • Ignorance of hazards is not an excuse • Staffing Agencies are responsible for providing at least some level of training, and depending upon their agreement with the host, and level of onsite presence and supervision, possibly much more

31. Responsibilities of host employers and staffing agencies HOST EMPLOYERS Must treat temporary employees like any other employee in terms of training and safety and health protection

32. Responsibilities of host employers and staffing agencies November 21, 2012 OSHA Interpretation letter to Staffmark OSHA details its’ position on the division of responsibilities and highlights 3 key areas: Recordkeeping, Training, and Hazard Communication https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28598

33. Responsibilities of host employers and staffing agencies “In general, both the temporary agency and the host employer have the responsibility to ensure that training, hazard communication, and recordkeeping requirements are fulfilled. Therefore, the issue at hand is the division of responsibility…the extent of responsibility is dependent upon the specific facts of the situation”

34. Responsibilities of host employers and staffing agencies “To ensure that there is clear understanding of each employer's role in protecting employees, OSHA recommends that the temporary staffing agency and the host employer set out their respective responsibilities for compliance with applicable OSHA standards in their contract. Including such terms in a contract will ensure that each employer complies with all relevant regulatory requirements, thereby avoiding confusion as to the employer's obligations.”

35. Responsibilities of host employers and staffing agencies TRAINING There are specific OSHA standards which cover training requirements depending on the industry, worksite, and job duties to which the temporary agency sends its employees. In general, it is the responsibility of the temporary agency to ensure that employees have received proper training.

36. Responsibilities of host employers and staffing agencies TRAINING In practice, even when the temporary agency has provided basic training, the host employer provides the workplace-specific training appropriate to the employees' particular tasks. In order to fulfill its obligation under such circumstances, the temporary agency must have a reasonable basis for believing that the host employer's training adequately addresses potential hazards employees may be exposed to at the host worksite

37. Responsibilities of host employers and staffing agencies HAZARD COMMUNICATION Both the temporary agency and the host employer are responsible for ensuring that employees are effectively informed and trained regarding exposure to hazardous chemicals OSHA Directive CPL 02-02-038 OSHA Interpretation Letter (Feb 3, 1994)

38. Responsibilities of host employers and staffing agencies HAZARD COMMUNICATION OSHA Directive CPL 02-02-038 Inspection Procedures for the Hazard Communication Standard, 29 CFR § 1910.1200 [Hazard Communication Standard] training of temporary employees is a responsibility that is shared between the temporary agency and the host employer. The host-employer holds the primary responsibility for training since the host employer uses or produces chemicals, creates and controls the hazards, and is, therefore, best suited to inform employees of the chemical hazards specific to the workplace environment. The temporary agency, in turn, maintains a continuing relationship with its employees, and would be, at a minimum, expected to inform employees of the requirements of the standard. (CPL 02-02-38, Appendix A, Section h, March 20, 1998)

39. Responsibilities of host employers and staffing agencies HAZARD COMMUNICATION See the OSHA Interpretation Letter February 3, 1994 TO Mr. Michael F. Moreau, National Employment Service Corporation Same direction as the directive – shared responsibility Reminder: Training on HCS 2012 was due December 1, 2013!

40. Responsibilities of host employers and staffing agencies Recordkeeping Generally, the Host is responsible for recordkeeping at their respective establishment. However, when multiple employers are involved, the responsibility to record is based upon who supervises the temporary worker’s day-to-day tasks. This issue is specifically addressed in OSHA’s recordkeeping regulation.

41. Responsibilities of host employers and staffing agencies Recordkeeping Day-to-day supervision occurs when: “In addition to specifying the output, product or result to be accomplished by the person’s work, the employer supervises the details, means, methods and processes by which the work will be accomplished.”

42. Responsibilities of host employers and staffing agencies Recordkeeping Example 1: When Host employer directs the work, full supervisory control - the Host is responsible for recording Example: 2 When only the staffing agency directs the work and maintains supervisory control – the staffing agency is responsible

43. Responsibilities of host employers and staffing agencies Recordkeeping More complex arrangements require the host and staffing agency(s) to communicate and work together to establish a plan to ensure all recordable injuries and illnesses are properly recorded in accordance with OSHA recordkeeping standard. No matter who does the recording, both entities are responsible for ensuring it is done!

44. OSHA – NIOSHRecommended Practices October, 2014 http://www.osha.gov/Publications/OSHA3735.pdf Evaluate the Host Employer’s Worksite Task Assignments JHA’s

45. OSHA – NIOSHRecommended Practices Train Agency Staff to Recognize Hazards Ensure the Employer Meets or Exceeds the Other Employer’s Standards Exchange/Review Programs Assign Responsibilities/Scope of Work IN THE CONTRACT

46. OSHA – NIOSHRecommended Practices Injury/Illness Tracking (Sharing Information) Training (Sharing Responsibility) First Aid/Medical Treatment/Emergencies I2P2 and assessments – performance measures Incident, Injury and Illness Investigation

47. OSHA – NIOSHRecommended Practices MAINTAIN CONTACT

48. Resources • https://www.osha.gov/temp_workers/ • OSHA’s On-Site Consultation Program https://www.osha.gov/dcsp/smallbusiness/consult.html 1-800-321-OSHA

49. Additional Assistance Harrisburg Area Office Duty Officer Hours 8:00 am - 4:30 pm (717) 782-3902 Web Site: www.osha.gov