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Nov 1, 2021

Washington Supreme Court Says Staffing Agencies May Sometimes Be Liable for Safety Violations

Addressing an important issue within the modern workplace—whether in a joint employment context, staffing agencies may be liable employers for safety violations under the Washington Industrial Safety and Health Act of 1973 (WISHA)—the Supreme Court of Washington, with two justices concurring in part and dissenting in part, held such liability could exist where the staffing agencies retained substantial control over the workers and work environment such that they could abate the relevant safety hazards [Department of Labor & Indus. v. Tradesmen Int’l, LLC, 2021 Wash. LEXIS 586 (Oct. 28, 2021)].

The Court said various factors should be considered, such as the agency’s power to control the worker, the ability to modify work conditions and status, control over the work site, and the level of knowledge of the relevant safety hazard.

Background

Tradesmen International and Laborworks Industrial Staffing Specialists are staffing agencies that place temporary workers with host employers. Tradesmen staffed a worker at a Dochnahl Construction site. Laborworks staffed workers at a Strategic Materials recycling facility. The Department of Labor and Industries (Department) cited the staffing agencies for WISHA violations arising from the staffing operations.

In both cases, the citations were vacated by the Board of Industrial Insurance Appeals (Board), finding that the staffing agencies were not liable employers under WISHA. The Department appealed the decisions to the superior court. As to Laborworks, the superior court reinstated the citations, and as to Tradesmen, the superior court affirmed the Board and vacated the citations. In both cases, the Court of Appeals determined that the staffing agencies were not liable employers under WISHA and vacated the citations [see Department of Labor & Indus. v. Tradesmen Int’l, LLC, 14 Wn. App. 2d 168, 470 P.3d 519 (2020), review granted, 196 Wn.2d 1036 (2021). The Supreme Court granted review and consolidated the cases.

Supreme Court’s Discussion

In an en banc opinion, with two justices concurring in part and dissenting in part, the Court initially noted that the Board, employing what it designated an “economic realities” test, had earlier determined that staffing agencies could be liable under WISHA, but only if both the staffing agency and the host employer had substantial control over the workers and the work environment. The Court noted that employment issues under the state’s workers’ compensation law and WISHA had similarities, they were not always the same.

The Court stressed that the inquiry should be whether the staffing agencies retained substantial control over the workers and work environment such that they could abate the relevant safety hazards. Factors such as the power to control the worker, the ability to modify work conditions and status, control over the work site, and the level of knowledge of the relevant safety hazard should be considered.

Control by Tradesmen

In the case of Tradesmen, the Court noted that the agency was cited for a temporary worker’s exposure to fall and scaffold hazards at the Palatine work site. The Board expressly found that Tradesmen did not control the temporary worker, the work being performed, the Palatine work site, or the work environment. The Court said these findings were supported by substantial evidence. After an initial inspection, there was no evidence that Tradesmen actively supervised the workers, controlled the methods of work or work conditions, or provided on-site supervision.

The Court stressed that Tradesmen had no ability to identify or abate the fall and scaffolding hazards at the unapproved site. The infrastructure-related violations were simply beyond the purview of Tradesmen’s control. Substantial evidence supported the Board’s findings, and the Court affirmed the Court of Appeals. Tradesmen was not a liable employer for these WISHA violations.

Control by Laborworks

In contrast, the Court noted that Laborworks was responsible for the administrative tasks of hiring and onboarding workers, paying wages, and providing workers’ compensation, unemployment insurance, and benefits per the contractual agreement. Laborworks inspected the work site and identified blood-borne pathogen hazards. The human resources and safety manager testified that Laborworks provided workers a limited safety training regarding the exposure to blood-borne pathogens. Laborworks also maintained some medical and training records and offered hepatitis B vaccines to some workers. While Laborworks did not have control over the daily operations and supervision at the work site, it had the right to—and exercised—control over the provision of vaccinations, training, and recordkeeping to prepare the workers for the temporary job assignment.

Laborworks knew that a worker had been poked by a sharp object while sorting materials a few months before the claim involved in the instant case. The Court said Laborworks was aware of the potential exposure and was required to take some action to abate the hazard. While Laborworks did not provide on-site supervision or daily control over the methods of work, it had notice of the prior incident and an opportunity to correct it in coordination with the host employer. If not, Laborworks should have removed the workers from the unsafe conditions. Ultimately, indicated the Court, Laborworks exercised substantial control over the workers and conditions—particularly, before the workers were assigned to the Strategic work site. These facts supported the conclusion that Laborworks was a liable employer for the WISHA violations in this case.