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Wash. court clarifies liability for staffing agencies under state law

Posted On: Nov. 4, 2021 12:54 PM CST

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The Washington Supreme Court held a temporary staffing agency liable for violations of the state Industrial Safety and Health Act.

Tradesmen International LLC and Laborworks Industrial Staffing Specialists are staffing agencies that place temporary workers with host employers.

Tradesmen contracted with Dochnahl Construction to provide temporary workers on an as-needed basis, and Laborworks supplied workers at a Strategic Materials recycling facility.

The Department of Labor and Industries cited both staffing agencies for violations of the Washington Industrial Safety and Health Act. The citations were later vacated by the Board of Industrial Insurance Appeals, which found the staffing agencies were not liable employers.

The department appealed the board’s decisions to the Superior Court, which reinstated the citations against Laborworks, but the Tradesmen citations were vacated.

On further appeal, the Court of Appeals determined that the staffing agencies were not liable employers under WISHA and vacated the citations.

The Washington Supreme Court explained that WISHA's purpose is to assure "safe and healthful working conditions."

For WISHA purposes, an employer is defined as any entity that engages in business and employs one or more employees.

In determining employer liability under WISHA, the board has held that whether a staffing agency "should be cited for WISHA violations depends on the economic realities of who controls the workplace,” the Supreme Court said.

“Under WISHA, control is an appropriate factor to consider in determining employer liability,” the court said. “We allocate responsibility to the entities best able to ensure a safe working environment and protect workers.”

To determine liability under WISHA where the putative employer is a staffing agency, the court said, the inquiry is whether the agency had sufficient control over the workers and work environment to abate the relevant safety hazards.

“In doing so, we consider the relevant safety hazard involved in the violation and determine the putative employer's level of control over the manner and instrumentalities of the work being performed, control over the workers, control over work conditions on site and the ability to abate the relevant hazards,” the court said.

Other helpful, nonexclusive factors to assess the level of control exercised by the putative employer include who has responsibility and power to control the workers and worksite and whether the alleged employer has the power to hire, fire or modify the employment conditions, the court said. “This is particularly true in the joint employment context where the putative employer is the primary employer as opposed to the host employer,” the court said.

Applying that approach, the court said Tradesmen is not a liable employer for the WISHA violations. The court said Tradesmen was cited for a temporary worker's exposure to fall and scaffold hazards at a worksite, but substantial evidence established that Tradesmen did not control the worker, the work, site or the work environment.

In contrast to the job site infrastructure hazards involved in the Tradesmen citations, the Laborworks citations do not directly involve job site safety issues, the court noted. Laborworks was cited for WISHA violations involving the provision of vaccinations, implementing proper safety equipment for sharp object exposure, inadequate safety training and inadequate medical record keeping.

While the board properly found that the host employer exerted control over the workers via assignments and supervision, the citations involved conditions that were within Laborworks' control, the court said.

Laborworks, as the primary employer, was responsible for performing safeguards before a worker was assigned to the host employer, the court said. Laborworks also exercised substantial control over the workers and conditions, particularly before they were assigned.

Since the citations against Laborworks involved responsibilities that are generally taken before or upon assignment of the job and recordkeeping requirements, and because Laborworks was responsible for administrative tasks and providing initial training, it was a liable employer for the WISHA violations, the court said.

In a dissenting opinion, Justice Steven C. Gonzalez agreed that Laborworks was appropriately cited as an employer under WISHA, but he argued that Tradesmen should also have been cited.