For the past several years, the U.S. Department of Labor, OSHA has put in place initiatives, formal and informal, relative to temporary employees in the workplace. The upshot of those initiatives is that OSHA cited both the actual employer (the temporary service, the staffing agency, the staff leasing service, or the contractor) and the “host employer” when temporary employees and employees of contractors were exposed to workplace hazards in violation of the Occupational Safety and Health Act (the Act). The National Labor Relations Board (NLRB), in a recent decision involving an effort to unionize at Browning-Ferris Industries of California (BFI), significantly expanded the definition of joint employer.
The BFI decision involved a host employer, BFI, and a provider of labor, Leadpoint. The NLRB’s decision in this case, which was initiated by the union,1 means that unrelated employers can be “joint employers” of the same employees under the National Labor Relations Act if both employers share in deciding matters that control the essential terms of employment. By definition, these types of employment relationships involve both employers controlling essential terms of the employment.
The BFI decision represents a major shift in terms of entities that can be held responsible for unfair labor practice violations and entities which may be have collective bargaining obligations. Put another way, under BFI, a host employer may have responsibilities to temporary, contract, leased, and other types of employees under the National Labor Relation Act.
Under the multi-employer doctrine, which is included as part of the OSHA Field Operations Manual, OSHA already reaches the so-called “controlling employer.” The BFI decision will likely be used by OSHA to further expand its reach to the “host employer,” particularly in circumstances where the “host employer” has little or no direct interaction with the temporary or contract employee. One likely area where OSHA will attempt to extend its reach is in the relationship between franchisors and franchisees, when the franchisee is in violation of the OSH Act. Another likely area is in the relationship between the employees of contractors and others performing maintenance, construction, or other activities which, in the past, where handled by the “host employer’s” employees. Finally, and already underway, is citing the “host employer” for exposing the temporary employee to a workplace safety violation.
OSHA was pressing these issues before BFI and will undoubtedly continue to expand their efforts now that the NLRB has made this decision. We will continue to monitor this issue and write about significant developments in the future.
1Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters