The Washington Supreme Court handed down a new framework last week on an employer’s responsibility at the worksite for health and safety violations. The Tradesmen decision results from two separate lawsuits involving different industries in which staffing agencies—defendants Tradesmen and Laborworks—placed temporary workers with host employers. In both cases, the Department of Labor and Industries (“Department”) cited the staffing agencies along with the host employers for WISHA violations. On appeal, the parties agreed that an employment relationship existed between the workers and staffing agencies. The only issue was whether staffing agencies may be liable employers for safety violations under WISHA, in a joint employment context.
In the first lawsuit, the staffing agency Tradesmen contracted to provide employees at a construction site. Under the contract, Tradesmen hired and paid the employees’ compensation, including wages and benefits, taxes, unemployment insurance, and workers’ compensation insurance. In return, the host employer at the construction site was solely responsible for directing, supervising and controlling Tradesmen employees and their work.
Related to workplace safety, the contract required that the host employer to notify Tradesmen if any employees were moved to a different worksite. Tradesmen inspected each new or different worksite where the employees worked for health and safety issues. In this instance, the host employer assigned a Tradesmen employee to a different site without notifying Tradesmen so a worksite inspection was never done.
At the construction site, the Department cited Tradesmen and the host employer for fall risk and scaffold hazards.
In the second lawsuit, the staffing agency Laborworks contracted to provide temporary workers to sort recycling and waste at a recycling plant. Under the contract, Laborworks hired and on-boarded the workers, paid the wages and taxes, provided benefits, provided unemployment insurance, and paid for workers’ compensation insurance. In return, the host employer contracted to “supervise, control, and safeguard [the worksite] premises, processes, or systems.”
At the recycling plant, the Department cited Laborworks and the host employer for failing to provide vaccinations, failure to provide proper safety equipment for sharp object exposure, inadequate safety training, and inadequate medical recordkeeping.
The Washington Supreme Court reviewed a number of its own decisions and federal OSHA decisions to lay the foundation for its decision. The Washington Supreme Court ruled that WISHA liability where the putative employer is a staffing agency should focus on whether the staffing agency (1) has sufficient control over the workers and (2) has sufficient control over the work environment to abate the relevant safety hazards. To help with this determination of liability, the Court instructs the Department to consider these factors:
- Power to control the workers;
- Control over the manner and instrumentalities of the work being performed, i.e. how the work gets done;
- Power or ability to change the work conditions and status; and
- Level of knowledge of the relevant safety hazard involved in the violation.
With this framework in mind, the Court found that Tradesmen was not liable for worksite violations because Tradesmen did not control the workers, how the work was being performed, the worksite conditions, and lacked knowledge of the relevant safety hazard because the host employer never notified Tradesmen of the worksite change. In contrast, Laborworks was liable for worksite violations because Laborworks controlled the workers’ preparation for the work including vaccinations, training, and related recordkeeping. Laborworks also had knowledge of the relevant safety hazard from a prior workplace injury.
The Tradesman decision gives Washington employers an important framework to consider when determining who is responsible for worksite health and safety. Liability will be made on a case-by-case basis, so Washington contractors and employers should revisit both their written contracts and job-site practices to consider who will be liable for workplace safety. Simply put, the written contract terms alone are not determinative regarding liability. Also as a reminder to our Washington employers, the determination of employer liability differs by statute, so while staffing agencies may be liable employers for the purposes of the Minimum Wage Act, that may not translate to liability under WISHA, so this analysis and evaluation should be ongoing even with existing business relationships. If you have questions about whether your contracts and job safety practices are sufficient, we are here to help.
