Employment Law Commentary, Volume 27, Issue 7, July 2015

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Temporary Workers In Dual-Employer Arrangements: Who Is Responsible For Their Health And Safety?

One of the most basic concepts in employment law is that employers have an obligation to furnish a safe workplace for their employees. Cal. Lab. Code § 6400. Until last year, however, the responsibility of staffing agencies that hired workers and sent them out to do temporary work for host employers was not so clear. If certain requirements were met that established that the staffing agency had no control over the host employer’s worksite, the staffing agency was not responsible for safety violations that affected its own employees. This was referred to as the PEMCO II defense, and it was the law for three decades. In August of last year, however, consistent with a national effort to better protect temp workers, the California Occupational Safety and Health Appeals Board issued two decisions that both eliminated the PEMCO II defense and expanded the responsibilities of staffing agencies. These decisions, Staffchex and Labor Ready, bear important implications for all companies that hire temp workers or contract for their services.

The triangulated structure of temporary work arrangements—among the staffing agency, host employer, and employee—creates a more complicated situation than that of a typical employment relationship. If a person is employed by two employers at the same time, a dual-employment situation exists between the two employers. One is referred to as the primary employer (who hires and pays the employee) and the other is referred to as the secondary employer (who typically contracts with the primary employer for the employee’s services and supervises the worksite). Dual-employment situations have become more common in recent years with the increase in demand for temporary workers. When a temp worker is injured on the job or exposed to a safety hazard, the primary and secondary employers often vehemently disagree over who bears responsibility.

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