Howard Mavity

The Obama Administration and its union and academic supporters dislike some of the methods by which manufacturers and distributors manage the supply chain. The Administration distrusts the shift of “non-core functions” from large manufacturers to specialized companies and more closely scrutinizes supply chains.

The Administration believes that contractors handling these functions are under such competitive pressure that they will ignore Occupational Safety and Health Administration requirements and will fail to pay for all hours worked or for overtime premiums. Moreover, OSHA believes that temporary and other non-traditional employees receive inadequate supervision. This anti-supply chain bias is typically unfair, but that does not mean that employers do not have legal exposure if inspected.

Managing Temporary, Lumpers, Contractors and Other Non-Routine Employees

Many “distributors” use temporary workers or logistics companies to manage seasonal and other workforce fluctuations. OSHA is concerned that temps may not receive the same supervision and training as “full-time” employees. Similarly, many employers use temps as “temp to perm,” which is basically an audition period for full-time employment. So here’s a few tips:

• The employer supervising the temp employee normally records the injury on the OSHA Form 300, even if an agency handles the workers comp.

• Safety hazards are the same for a temp and a full-time employee performing the same duties, so they should receive the same training and PPE, as well as participate in the same safety meetings and be held to the same safety standards.

• Many so-called “temps” work for months and years at a time with the same employer and must be included in any respiratory protection or hearing conservation programs (such as for certain work areas around conveyors).

• Speaking of those “temps” who may work for you for longer periods than some “full-time employees,” you should audit your workforce because (a) you may not know how many such workers you use, and (b) you may realize just how long they have been with you and whether they are properly classified for wage and benefit purposes.

If you use lumper or other logistics providers on-site, you may still retain some degree of what OSHA calls “controlling” employer responsibility to monitor or take some steps to require your on-site provider to comply with OSHA standards. Often the provider has supervision on site and you do not want to interfere with the “means and methods” of how they do their job. Nevertheless, you should take steps to ensure that the provider has effective safety procedures in place during your “prequalification” of the provider. Require the provider to document site-specific “Job Safety Analysis” (JSAs) that they have prepared for each job requiring PPE. Ask for documentation of training. Do not take on responsibility to “review” their training materials and programs but do make them document their processes. The provider may be a separate employer with its own supervisors, but if their employees are hurt or if they are cited for OSHA violations, the odds are that, in some fashion, you will be drawn into the fray.

Wage and Discrimination Issues Presented by Temps

You may be liable for legal claims by some non-employees. Tests for “joint employer” vary according to the state or federal law. You may want to avoid joint employer status for contractor employees working where they are supervised by the provider. But don’t assume that your efforts are adequate. As set out in the new Fed Wage and Hour Director‘s book, “The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It,” government agencies want to hold the large companies using contractors responsible for wage and other violations by their contractors.

Workers engaging in harassment or creating a hostile work environment do not distinguish between temporary and full-time employees and limit their bad behavior to one group. Your temp employees may not be as aware of your anti-discrimination policies or complaint procedures as longer-term employees. Instead of coming to you, they may seek assistance from the EEOC or a plaintiff lawyer. Also, modern employees do not tolerate the same level of horseplay and rough teasing that those of us in our 50s endured. When you see a claim that a male coworker photographed and shared photos of another worker in a shower or hung a noose “as a joke” in a work area, that outrageous conduct did not occur overnight. There was a gradual loss of professionalism in the workplace. That’s why you see a spike of “same sex” harassment cases.

Bullying, Professionalism and the NLRB

Many employers are issuing “No Bullying” policies or training supervisors to address unprofessional workplace behavior before it rises to a legal claim. Some companies have issued civility or code of conduct policies. However, the NLRB has quite literally declared war on any policy that the Board believes in any way might discourage employees from exercising their rights to organize or discuss wages, benefits and terms and conditions of employment. The Board has found the rules below as overbroad:

• A rule prohibiting “making false, vicious, profane or malicious statements toward or concerning the employer or any employee;”

• “Verbal comments or physical gestures directed to others that exceed the bounds of fair criticism and behavior that is counter to promoting teamwork;”

• Behavior that is “disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork;”

• Prohibiting “loud, abusive or foul language;”

• Discipline for “the inability or unwillingness to work harmoniously with other employees;”

• Engaging in any activity that could harm the image or reputation of the company; and

• A rule prohibiting “negative conversations about employees or managers.”

Based solely on the last six months of NLRB decisions, I doubt that any distributor or logistics’ employer’s employee handbook and policies are lawful. Granted, the recent Noel Canning Supreme Court decision invalidated some of these decisions, but that does not change the opinion of the NLRB.

Action Points

1. Audit your safety processes and ensure that temps are fully incorporated in your safety programs just like full-time employees.

2. Don’t rely on temp providers for even basic safety training. Do it yourself. Likewise, be wary of providing training for other employers’ employees or temps you may assign.

3. Ensure that No Harassment, Open Door, Complaint and Codes of Conduct policies are applied to all employees.

4. Establish clear safety and other legal compliance obligations for contractors working on-site.

5. Evaluate supply chain partners for ways in which their legal noncompliance could involve you in embarrassing publicity or legal claims.

Publication date: 9/22/2014