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Are Your Workers Covered by OSHA?

In general, OSHA imposes responsibility on employers with respect to the safety of their employees. But what about workers who aren't technically your employees? Different employment relationships bring different responsibilities.

• Loaned employees — when employees are loaned by one employer to another, the employer with control over the employees is responsible for assuring their safety.
• Leased equipment and operators — when equipment is leased with an operator, the company providing the equipment and operator is generally held to be the employer responsible for compliance with standards relating to the use of the equipment.
• Temporary employees — sometimes you can be held responsible for the safety of temporary employees.

A tire company that used the services of warehouse workers provided by a temporary personnel referral service was the workers' employer and was subject to OSHA recordkeeping requirements for those workers. The tire company paid the referral service to do its personnel-related recordkeeping and paperwork, but the service had no control over workplace hazards.

• Independent contractors — in determining responsibility for employee safety, OSHA goes beyond the form of an alleged "independent contractor" relationship and examines the substance of the working arrangements to determine whether the one who contracted for the services or a subcontractor may be considered the "employer" under the Act.

A plumbing subcontractor, whose workers were carried on a prime contractor's payroll as a convenience until the subcontractor received its license, was the employer of the workers. However, a produce harvesting and marketing firm was considered to be the employer of migrant farm workers rather than the crew leader with whom it contracted to provide workers.

• Partner or employee — the formal structure of the business does not control the determination when the "economic reality" is that the workers are in the same position as employees.

A business that had changed from a sole proprietorship to a partnership in which the workers shared in the profits and losses remained the employer because the former proprietor supervised all activities and controlled all labor practices and policies. The workers continued to receive an hourly wage, could be hired and fired, were assigned duties, and were generally treated as employees.