Chapter 1
Staffing Services Defined
a. How Staffing Firms Operate
ASA defines a temporary or contract staffing service as
b. Nature of Temporary Work
Temporary work generally is intermittent, highly variable, and often unpredictable. . Some work on multiple
assignments for the same client but with breaks in service that can vary from a few days to a few months.
Clients many times give staffing firms and their employees little or no notice that they are ending or extending
an assignment.
Staffing firms typically provide their temporary job applicants with explicit notice that work is contingent
and that clients have discretion to end assignments at any time. At the same time, staffing firms and their
employees do not view the end of an assignment as the end of their relationship with the staffing firm
because, in the normal course, the firms assign the employees to other assignments or start looking for other
assignments for the employees.
c. How Temporary Employees Are Assigned and Paid
Individuals seeking temporary work apply for jobs by completing an application process either by visiting
a staffing firm office or filling out the application online. With the exception of so-called “day labor”
operations (i.e., where work-seekers, usually general laborers, go to a central dispatching location and wait to
be assigned to a job), temporary job applicants generally are not dispatched to an assignment from the
staffing firm’s premises. Instead, after successfully completing the application process, they leave the staffing
firm’s office and, depending on the availability of assignments, may wait anywhere from a day to several
weeks before being contacted by the staffing firm with an offer of work. Except for day laborers, who
generally are transported back to the staffing firm’s dispatching location at the end of the day to be paid,
temporary employees rarely have occasion to return to the staffing firm’s premises.
When a staffing firm receives a client order for temporary help, it reviews its applicant database to
determine which individual’s skills and preferences best match the client’s needs. The firm contacts the
employee and describes the prospective assignment, the pay rate, and the expected length of assignment. If
the individual accepts the assignment, he or she reports directly to work at the client’s premises. Upon
completion of the assignment—or, in the case of longer assignments, at the completion of each week of
work—the employee’s work hours are recorded, verified by the client, and submitted to the staffing firm. The
staffing firm uses the record of hours worked to generate employee paychecks and client invoices. Based on
the time record, the staffing company pays the employee and bills the client for the services performed. The
amount billed covers the employee’s wages and benefits, unemployment insurance, and workers’
compensation; the staffing firm’s selling, general, and administrative expenses; and a profit element. The
staffing company’s obligation to pay its employees is not dependent on being paid by its clients.
Temporary employees usually are paid weekly by mail. Except for day laborers, who generally are paid
daily and in person, payroll and billing are performed early the following week for the work of the prior week.
Payment is generally weekly with paychecks normally being mailed in the middle to later part of the week
following the week when the work was performed. Increasingly, employees are paid through direct deposit to
their bank accounts or by electronic pay cards and as may be required by state payroll laws.
d. State Regulation of Temporary Staffing
Regulation of temporary and contract staffing services per se is relatively minimal. Three states—
Massachusetts, New Jersey, and North Carolina—require temporary staffing firms to register prior to
conducting business. Four states—California, Massachusetts, New York, and Rhode Island—require staffing
firms to provide temporary employees with written notices regarding job assignments. Rhode Island also
imposes a bonding requirement. Six states—Arizona, Florida, Georgia, Illinois, New Mexico, and Texas—as
well as certain municipalities have local laws governing the provision of unskilled industrial temporary labor, or
“day labor." Thirteen states and the District of Columbia, either through laws or regulations, regulate health care
staffing services in which nurses and allied health professionals are placed on temporary assignments. (See
Appendix A.)
e. Temporary Distinguished from Part-Time
Temporary work is sometimes confused with part-time work. There are two key differences. First, parttime employees always work less than a full-time workweek. Second, they generally work on a regular
schedule. The schedule may change, but the employment relationship is ongoing and indefinite with no
inherent or implicit limitation on the length of the relationship.
In contrast, temporary work generally is sporadic and intermittent and is not governed by a fixed or
regular schedule. Temporary assignments generally are expected to end at some definite point in time, even if
that point in time is undetermined at the outset. In addition, when temporary employees do work, they
generally work full-time rather than part-time workweeks.
The second difference is that part-time employees generally are hired directly by the business for which
the services are performed whereas temporary employees generally are hired by firms that specialize in
providing temporary staffing services and are then assigned to the clients of those firms. Of course, some
businesses and government agencies hire their own temporary employees directly instead of using an outside
firm.
3. Employee Leasing (Professional Employer Organizations)
PEOs are subject to significant regulation at the state level. Such regulation includes laws requiring
general licensing or registration of employee leasing organizations and laws dealing specifically with workers’
compensation and unemployment insurance. Services of leased employees for the purposes of health and
pension benefits are also subject to special treatment under federal tax law. (See discussion of Internal
Revenue Code “Leased Employee Rules” beginning on p. 26.) Currently, 36 states have enacted licensing,
registration, or other laws that, among other things, impose financial disclosure and reporting requirements
on employee leasing organizations.
a. Tax Status of PEO Defined-Contribution Plans
Federal legislation to clarify that PEOs that voluntarily apply for certified PEO status can assume
responsibility for employment taxes and employee benefits has been considered for a number of years but has
not been enacted. After deferring action for several years in the expectation that Congress might deal with the
issue, the Internal Revenue Service issued Revenue Procedure 2002-21 to provide guidance to PEOs on the
tax status of the defined-contribution retirement plans maintained for employees covered under such
arrangements. The guidance outlines the steps that PEOs can take to ensure that their 401(k) or other
defined-contribution plan remains tax qualified.
b. Employer Status of PEOs for Employment Taxes
Culminating an effort that began in 1997, the PEO industry was successful in enacting the Small Business
Efficiency Act (SBEA). The bill was part of a package of tax extenders that included extension of the Work
Opportunity Tax Credit. The president signed the extenders bill on December 19, 2014. The legislation’s
primary achievement is the establishment of a certification process under which certified PEOs will have
explicit statutory authority, recognized by the Internal Revenue Service, to collect and remit federal
employment taxes. The law also eliminates the wage base restart for PEO clients that join or leave a PEO
relationship; and codifies that clients of certified PEOs will qualify for specified federal tax credits that the
customers would be entitled to claim if there were no PEO relationship. Implementing regulations are
expected to be issued by the IRS next in 2015, after which the law will become effective January 1, 2016.
In 2008, the IRS general counsel’s office issued an opinion in a case involving a FUTA tax refund claim
made by a PEO. Because eligibility to claim a refund is limited to employers that have FUTA tax liability, the
issue was whether the PEO was an employer for that purpose.
The PEO asserted its right to a refund as the statutory employer under the federal tax code provision that
recognizes the employer status of a person that has control over the payment of wages where the employer
for whom the employee actually performs service—in this case, the PEO’s client—does not have such
control. The PEO also argued that it was the statutory employer for state unemployment tax purposes. The
PEO did not claim to be the common-law employer, and the IRS held that, on the facts presented, the PEO
“most likely” was not the common-law employer.
Common-law employer status was critical in determining whether the PEO could lawfully report
wages, income tax withholding, FICA, and FUTA for all of its clients on an aggregated basis under the
PEO’s name and employer identification number. The IRS held that while the PEO was a statutory
employer for withholding, reporting, and payment of wages, only the common-law employer is the
employer for purposes of calculating the FICA and FUTA taxable wage bases and thus is the only
employer that can aggregate an employee’s wages for those purposes or claim a FUTA tax refund.8 Based
on the assumption that the PEO was not the common-law employer, the IRS denied the refund.
The inability to aggregate wages would increase a PEO’s employment tax liability in any year in which an
employee worked for another PEO client and the employee’s wages exceeded the FUTA or FICA wage base.
For example, if the PEO were the common-law employer, it could aggregate the wages of an employee who
earned $25,000 with one client and $25,000 for another client, and the PEO would owe FUTA tax on only
the first $7,000 (the current wage FUTA wage cap), but if the PEO were not the common-law employer, it
could not aggregate the employee’s wages and the PEO would owe taxes on $14,000—twice the FUTA
liability.
Thus far, the IRS has applied the nonaggregation rule only to employee leasing/PEO firms. Temporary
staffing firms have a stronger claim to common-law employer status than PEOs and should be allowed to
aggregate. But given that their employees frequently work for multiple clients, staffing firms should take steps
to reinforce their common-law employer status by exercising as much direction and control over their
employees as possible and ceding as little control as possible to their clients. See Chapter 3 on the importance
of maintaining the staffing firm’s employer status.
7. Temporary-to-Hire
A growing staffing service often called temporary-to-hire combines elements of both temporary
staffing and search and placement services. Because staffing firms have a high level of expertise in
recruiting, screening, and training, many businesses are turning to such firms to help recruit and place
individuals in full-time positions. Under these arrangements, the client asks the staffing firm to recruit
individuals who may be interested in permanent employment and to assign them to the client for a trial
period during which both the client and the potential employee can evaluate the relationship. The U.S.
Department of Labor has characterized the practice of first auditioning permanent employee candidates
as temporary employees as the fastest-growing segment of the staffing industry.
During the trial period, the staffing firm employs the individual in the same manner as in any other
temporary assignment and pays all wages, benefits, and statutory insurance coverage. If the client and
the temporary employee agree to enter into a full-time employment relationship, the individual and the
staffing firm terminate their relationship. This termination may occur immediately after the client decides to
hire the individual, in which case the client generally pays the staffing firm an additional fee as
consideration for the successful placement. Alternatively, clients are often given the option of maintaining
the individual on the staffing firm’s payroll for a specified period of time after the hiring decision, at the end
of which the client hires the individual at no additional fee. Unlike traditional employment agency and
recruiting arrangements in which applicants may or may not be charged a fee, temporary-to-hire
arrangements do not involve charging individuals a fee.
Chapter 2
Co-Employment Issues
A. Compensation and Benefits
d. Waivers of Client Liability
Courts in Arkansas, Massachusetts, and Pennsylvania have upheld the validity of waivers executed by
staffing firm employees in which the employees gave up their rights to sue any client for injuries covered by
state workers’ compensation laws. In these states, a properly drafted and executed waiver may protect clients
from liability for workplace injuries caused by negligence. Waivers may be viable in other states, and staffing
firms should consult with legal counsel regarding their use.
2. Unemployment Insurance
Staffing firms are generally recognized as the employer for unemployment insurance purposes. There are
exceptions in certain states. In Arizona, clients of temporary staffing firms can be held jointly liable as coemployers for any unpaid unemployment insurance premiums. Rhode Island holds clients jointly liable for
certain employment taxes if they use the services of a staffing firm that is not certified with the state tax
department
Forty states have special unemployment insurance rules for employee leasing organizations (see
Appendix B).
4. Wage and Hour Issues
The federal Fair Labor Standards Act establishes minimum wage, overtime, equal pay, payroll recordkeeping, and child labor requirements for most employers. The FLSA applies to any business on which an
employee is dependent as a matter of “economic reality.”
The courts have established a five-part economic reality test for determining the existence of an
employment relationship under the FLSA. The five parts are (1) the degree of control exercised by the
service recipient over the employee, (2) the employee’s opportunities for profit or loss and his or her
investment in the business, (3) the degree of skill and independent initiative required to perform the work,
(4) the permanence or duration of the working relationship, and (5) the extent to which the work is an
integral part of the employer’s business.
In addition, DOL regulations expressly impose joint employment obligations in specified circumstances.
For example, if an employee is employed jointly by two or more employers during a workweek, all of the
employee’s work during the week is considered one employment, and all employers are responsible for
compliance with the wage and hour provisions for the period worked for each employer.
In a 1968 opinion letter, DOL applied these regulations in a case involving temporary staffing (see
Appendix E). DOL made two key points. First, temporary staffing companies, not their clients, have primary
responsibility for keeping records of hours worked and for paying the proper amount of overtime. At the
same time, the DOL asserted that temporary employees assigned to work for various clients are typically
employed jointly by the temporary staffing company and its clients, and clients may be held jointly
responsible for overtime and minimum wage obligations.
More recently, and pursuant to the DOL's fissured industries initiative, the DOL's Wage and Hour
Division (WHD) has pursued the joint employment and liability theory against temporary staffing firms and
their clients.[FN] Between 2009 and 2013, WHD conducted approximately 1,000 investigations of temporary
staffing firms. After one such investigation, a client settled with WHD for nearly $500,000 in back wages and
liquidated damages after WHD determined that the client jointly employed the temporary workers who
worked at its storage and packing facility, and the client was jointly liable for failure to pay the temporary
workers for all hours worked.
In the case of overtime, a client is jointly liable with the temporary staffing firm for the payment of
overtime only if the temporary employee worked more than 40 hours in the week for that client. If the
staffing firm exercises no control over the employees (i.e., has no right to hire or fire, set pay, or determine
assignments) and is simply a payroll agent, the client may be considered the employer for FLSA purposes.37
Moreover, if a temporary employee is placed with a client by several staffing firms and works over 40 hours
in a week for the client but not more than 40 hours for any one of the staffing firms, the client may be solely
liable for overtime.
Apart from federal law, California law imposes joint liability on clients of labor contractors for failure to
pay proper wages and maintain valid workers' compensation insurance. The term “labor contractor” is
defined as any entity that supplies workers to perform labor within a client’s usual course of business,
including staffing firms. California clients historically have been treated as joint employers with staffing firms
for wage and hour and other employment law purposes, and this law codifies the joint employment principle.
The law also requires claimants to provide clients with 30 days’ notice prior to filing a lawsuit. This
requirement will give clients the opportunity to refer matters to staffing firms for resolution before litigation.
In some circumstances, staffing firm clients may be exempt from overtime requirements given the nature
of their business. In addition to the so-called white-collar professional, executive, and administrative
exemptions, the FLSA also contains other, less familiar, exemptions that focus on the nature of the
establishments that employ the employees. These exemptions may apply to staffing firms when they place
temporary and contract employees with clients that qualify for the exemptions.
For example, in Tidd v. Adecco, a Massachusetts federal court held that temporary employees were jointly
employed by FedEx and the staffing firms that assigned them, and thus the staffing firms shared FedEx’s
exemption from all overtime pay requirements under the federal Motor Carrier Act.
The court found that if the Motor Carrier Act did not apply to jointly employed workers, the law’s
purpose would be frustrated because such workers would not be subject to the safety requirements of the law
and the U.S. Department of Transportation. Conversely, the court noted, extending the Motor Carrier Act
overtime exemption to joint employers prevented circumvention of DOT’s authority. As a result, the court
held that the staffing firms were exempt from paying the assigned employee’s overtime.
5. Health and Pension Benefits
The primary co-employment concern in the benefits area is whether a staffing firm client has a legal
obligation to provide benefits to a staffing firm’s employee. The answer is generally no, but this area of law is
highly fact specific. (A quick-reference guide to the most frequently asked questions in this area is included in
Appendix F.)
Laws in San Francisco and the federal Patient Protection and Affordable Care Act require employers to
either provide health insurance coverage or pay a tax penalty to the government, but no law (except one in
Hawaii, which requires employers to provide health coverage to full-time employees) requires employers to
provide health or pension benefits to their employees or to anyone else’s employees. But federal tax law does
require employers to include “leased employees” in their head counts for the purpose of the coverage tests
applicable to certain employer benefits plans.
To understand how the leased employee rules work, it is essential to understand the tax policy behind the
so-called “coverage tests.”
c. Benefit Plans Affected by the Leased Employee Rules—Application to the ACA
Section 414(n) leased employee rules come into play when applying coverage tests to retirement, life
insurance, and cafeteria plans and when determining whether group health plans are subject to the
Consolidated Omnibus Budget Reconciliation Act (COBRA) and certain Medicare coordination-of-benefit
rules. But section 414(n) rules do not currently apply to the coverage tests relating to group health plans.
The Affordable Care Act addresses the treatment of leased employees in two specific contexts. First, the
law expressly provides that leased employees must be included by any employer claiming a small business tax
credit under the law. This was to ensure that clients of professional employer organizations with less than 25
employees do not lose their ability to claim the small business tax credit provided by the ACA. But it also is
intended to prevent larger employers from improperly claiming the credit by shifting employees to PEOs to
lower their headcount. Second, the final regulations make clear that recipients do not have to count leased
employees as employees for purposes of compliance with the employer shared responsibility rules. Hence,
staffing firm clients should have no obligation to include staffing firm employees for purposes of ACA
compliance unless the client is determined to be the common law employer based on the facts and
circumstances. Based on historical practice and legal precedent, staffing firms generally should be viewed as
the common law employer, not the client.
m. Limits on Worker Assignments—Are They Necessary?
To protect against benefits claims following the Microsoft litigation, clients began to adopt policies
limiting the length of assignment of staffing firm employees. Some of these policies seem to be based on the
erroneous belief that, after working for a certain period of time, such employees are automatically eligible for
coverage under client benefits plans or even entitled to be hired into regular full-time positions with the
client.
However, length of assignment is not the sole issue in determining the employment status of workers
supplied by staffing firms. For tax and benefits purposes, it is but one of many factors under the commonlaw control test and is by no means determinative. Assignment limits may even carry some risk if the client
has not clearly excluded staffing firm employees from its plan because those limits might be construed as an
effort to deny benefits by preventing employees from reaching the hours needed for plan participation.
Clients could face charges of violating ERISA, the tax code, and the Affordable Care Act, which protect
employees from such employer action.
Because assignment limits can cause economic harm to workers whose assignments are terminated
prematurely and can disrupt client business operations, clients should examine their time limits policies to ensure
that they are necessary and are not based on misinformation. For example, it is important to understand that
while ERISA sets rules for employer benefit plans, it does not require employers to offer benefits and does not
dictate what level of benefits must be provided. Also, federal tax law, while it requires that plans satisfy certain
coverage and nondiscrimination rules as a condition of receiving favorable tax treatment, does not require
employers to offer benefits to or to cover all employees in their plans. As previously noted, a company generally
can exclude up to 30% of its rank-and-file employees under a pension, profit-sharing, or 401(k) plan without
endangering the plan’s tax-advantaged status. This “slack” is why clients generally can exclude staffing firm
employees from their benefit plans without jeopardizing their tax status.
Nevertheless, some clients, relying on the ERISA “hours of service” rules, terminate the staffing firm’s
workers before they reach 1,000 hours in the erroneous belief that all individuals who work at least 1,000
hours in a year are entitled to participate in the client’s retirement plan. This is unnecessary because the hours
of service rule does not apply to nonemployees or to employees who have been expressly excluded from the
plan under a proper exclusion provision. Nor does it apply in cases where the client's retirement plan does
not require 1,000 hours of service or, necessarily, to an employer that adopts the "elapsed time" method.
Other clients’ assignment limit policies are based on the federal tax code provisions dealing with “leased
employees,” IRS Code section 414(n). Again, those provisions do not require clients to provide benefits to
leased employees. In fact, leased employees can and should be excluded from client plans. The rules require
only that leased employees be included in a client’s head count for discrimination testing purposes. This is not
a problem unless the client has so many leased employees (and other excluded employees) that it exceeds the
“slack” in the client’s plan discussed earlier, which could affect the plan’s tax qualification.
B. Employment Practices
3. Work Site Safety
Although clients have primary responsibility for maintaining safe work sites, staffing firms have a
responsibility to take reasonable steps to determine conditions at the work site, provide generic safety
information, and advise employees as to how they can obtain more specific information at the work site to
protect themselves from hazards they are likely to face on the job. Staffing firms can be penalized for failing
to inquire about the conditions at the work site and to take adequate steps to ensure that their employees are
properly informed of any hazards and how to protect themselves. In 2013, OSHA launched a Temporary
Worker Initiative, an education and enforcement campaign pursuant to which the agency published, among
other documents, a recordkeeping bulletin, and recommended practices for temporary worker safety. In the
recommendations, OSHA highlighted staffing firms' and clients' joint responsibility for providing and
maintaining safe working conditions. (see Appendix K)
California is a notable departure from the general view that the client is the primary employer for work
site safety. The state occupational safety and health board has held that staffing firms are the primary
employer and must not only inspect the work site but also provide adequate safety training and furnish a safe
workplace.136 In addition, California provides that every employer in a staffing arrangement is required to
report injuries to the California OSHA and that staffing firms may not delegate this duty to clients.
7. Privacy Protection
a. Health Information Privacy Rules Under HIPAA
The Health Insurance Portability and Accountability Act of 1996 required the establishment of privacy
rules that apply to organizations in the health care industry and that set a compliance date of April 14, 2003,
for most covered entities. On May 21, 2008, President Bush signed the Genetic Information
Nondiscrimination Act of 2008 which, among other things, expanded HIPAA specifically to state that genetic
information should be considered medical information and receive the same privacy protections. The EEOC
is charged with authority to enforce GINA.
The American Recovery and Reinvestment Act of 2009 included amendments to HIPAA, known as the
Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH), that impose
significant new obligations on “covered entities” and “business associates” that generally became effective
February 17, 2010. In January 2013, the U.S. Department of Health and Human Services (HHS) issued a
comprehensive omnibus rule (the “omnibus rule”) implementing HITECH. The general effective date of the
omnibus rule was Sept. 23, 2013.
b. Argument for Not Treating Staffing Firms or Their Temporary Employees as
Business Associates
The HIPAA privacy rules appear to provide two bases for arguing that staffing firms and their temporary
employees are not business associates of their clients, at least in the typical case where the temporary
employees provide services on the client’s premises under the client’s supervision.
First, because the definition of business associate excludes individuals who act “in the capacity of a member
of the work force” of a covered entity, temporary employees will not be treated as business associates if they can
be characterized as members of the client’s work force. “Work force” is defined as employees, volunteers,
trainees, and other persons who perform work under the direct control of a covered entity, whether or not they are
paid by that entity. While the rules do not define “direct control,” where the individual works might be a
significant factor.
The focus on location makes practical sense, given that the purpose of the business associate contract is
to protect protected health information when it leaves the control of the covered entity. If an individual
works with such information on the premises of the covered entity, the information arguably has not left the
covered entity’s control in a way that requires the protection of a business associate contract. By contrast, if
the service provider is using protected health information off-site, there is arguably a greater need for such
protection.
Because a staffing firm’s temporary employees typically work at the client’s premises and the parties would not
contemplate protected health information leaving the client’s premises and control of the covered customer,
temporary employees generally should be treated as under the client’s direct control and, therefore, as members
of the client’s work force rather than its business associates. The preamble to the omnibus rule recognizes this
to be the case, stating:
“[A] covered entity may treat a contractor who has his or her duty station onsite at a covered entity
and who has more than incidental access to protected health information as either a member of the
covered entity’s workforce or as a business associate for purposes of the HIPAA Rules.”
Second, even if temporary employees, for some reason, are not treated as actual members of the client’s
work force, they still should not be treated as the client’s business associates because they are acting in the
capacity of work force members. Staffing firms typically assign their employees to perform, on a temporary
basis, functions similar to those performed by the client’s regular employees and, in that sense, they act in the
capacity of the client’s work force.
Under either of the above arguments, staffing firms generally should not be required to enter into
business associate contracts with the covered clients to which they send temporary employees.
Appendices
A. State Laws That Regulate Temporary Staffing Firms
B. State Laws That Regulate Employee Leasing Services
C. State Laws Regarding Exclusive Remedy for Special Employers
K. Occupational Safety and Health Administration Recordkeeping Rules
Appendix A
State Laws That Regulate Temporary Staffing Firms
Table A1
Licensing, Registration and Bonding Laws Applicable to Temporary Help Firms
State
Massachusetts
Statute Citation
MASS. GEN. LAWS ANN. CHAPTER 140 § 46-B, ‘‘Employment Agencies’’
Registration
New Jersey
N.J. STAT. ANN. § 56:8-1.1, ‘‘Consumer Fraud Act’’
Registration
North Carolina
N.C. GEN. STAT. § 95-47.14, ‘‘Regulation of Private Personnel Services’’
Registration
Rhode Island
R.I. GEN. LAWS ANN. § 5-7-3, ‘‘Employment Agencies’’ (bonding requirements law; § 28-
Bonding
6.10-1 to 28- 6.10-4,
Table A2
States with Right to Know and Wage Payment Laws
State
Statute Citation
California
CAL. LAB. CODE § 201.3
Termination Pay
California
Imposes joint liability on
staffing firms and clients
with respect to wages and
failure to provide workers’
compensation
CAL. LAB. CODE § 2810.3
California
Cal. Lab. Code § 2810.5
Wage Statement
Illinois
820 ILCS 175/1 Day and Temporary Labor Services Act
Sec. 10 Notice, Sec. 30
Wage Payment and Notice)
Massachusetts
Mass General Laws Ann. Chapter 149-§159C
Job description and notice
requirements)
New York
N.Y. Lab. Law Art. 6 § 195
Notice and record keeping
requirements
Rhode Island
General Laws Chapter § 28-6.10-1 to 28-6.10-4
Temporary Employee
Protection Act
Table A4
States That Regulate Health Care Staffing Firms
State
Maryland
Statute Citation
Md. Code Ann., Health-----General § 19-2001 through 19-2002, "Health Care Staff
Agencies"
Massachusetts
Mass. Gen. Laws Ann. ch. 111, § 72Y, ‘‘Nursing Pool Registrations’’
Pennsylvania
43 Penn. Stat. Ann. § 573, ‘‘Employment Agencies-----Nurses’ Registry’’
Rhode Island
R.I. Gen. Laws § 5-34.1-6.1 through 5-34.1-6.5, ‘‘Nursing Pools’’
Appendix B
State Laws That Regulate Employee Leasing Services
Table B1
States With Licensing or Registration Requirements for Employee Leasing Companies
State
Statute Citation
Arkansas
ARK. STAT. ANN. § 23-92-401 TO 23-92-419, ‘‘Arkansas Employee Leasing Act’’
Connecticut
Conn. Gen. Stat. § 556A-31-221a to 221 h
Registration only
Louisiana
LA. REV. STAT. ANN. § 22: 1541 TO 1543 , ‘‘Louisiana Professional Employer Act’’ (insurance
Registration only
law);
§ 23:1761 to 23: 1768, ‘‘Professional Employer Organizations’’ (labor and workers’
compensation law)
Maine
ME. REV. STAT. TIT. 32, § 14051 TO 14059, ‘‘Employee Leasing Companies’’
Nevada
NEV. REV. STAT. § 616B.670 TO 616B.697 , ‘‘Employee Leasing Companies’’
North Carolina
N.C. GEN. STAT. § 58-89A-1 to 58-89A-180, ‘‘North Carolina Professional Employer
Registration only
Organization Act’’
Tennessee
TENN. CODE ANN. § 62-43-101 to 62-43-113, ‘‘Employee Leasing’’
Texas
TEX LABOR CODE ANN. § 91.001-91.062, ‘‘Staff Leasing Services Act’’
Wisconsin
Wis. Stat. § 202.01 to 202.29, "Regulation of Professional Employer Organizations and
Registration only
the Solicitation of Funds for a Charitable Purpose"
Table B2
States With Special Workers’ Compensation Laws Applicable to Employee Leasing
Services
State
Law Citation
Arkansas
ARK. CODE ANN. § 23-92-401 TO 23-92-419
Louisiana
LA. REV. STAT. ANN. § 22: 1746
Maine
ME. REV. STAT. ANN. tit. 32, § 14055.2
Massachusetts
MASS. ANN. LAWS CH. 152, § 14A
Minnesota
MINN. STAT. ANN. § 268.065
Nevada
NEV. REV. STAT. § 616B.670 TO 616B.697
Wisconsin
Wis. Stat. 108.067
Table B3
States With Special Unemployment Insurance Laws Applicable to Employee Leasing
Services
State
Statute Citation
Florida
FLA. STAT. § 443.036(18)
Iowa
IOWA ADMIN. CODE R. 871.22
Louisiana
LA. REV. STAT. ANN. § 23: 1761 TO 1768
Minnesota
MINN. STAT. § 268.065
Oklahoma
OKLA. STAT. TIT. 40, § 1-209.1
Tennessee
TENN. CODE ANN. § 62-43-109
Utah
UTAH CODE ANN. § 31A-40-209
Washington
WASH. REV. CODE § 50.04.245
Appendix C
State Laws Regarding Exclusive Remedy for Special
Employers
Table C1
States That Apply the Exclusive Remedy Rule to Special Employers
The following states have applied the exclusive remedy provisions of their workers’ compensation laws to customers using
temporary help or other contract services.
State
Case or Statute
Pennsylvania
English v. Lehigh County Authority, 286 Pa. Super. 312, 428 A.2d 1343 (Pa. Super. Ct. 1981). But
see Bowman v. Sunoco, Inc., 620 Pa. 28 (Pa. Apr 25, 2013) in which the Pennsylvania
Supreme Court relied on the Horner case in Massachusetts and the Edgin case in Arkansas
to find that a staffing firm worker who signed a waiver gave up his right to sue any customer
of the staffing firm for injuries covered by workers' compensation.
Table C2
States That Do Not Apply the Exclusive Remedy Rule to Special Employers
State
Case or Statute
Massachusetts
Numberg v. GTE Transport, Inc., 34 Mass. App. Ct. 904, 607 N.E.2d 1 (Mass. App. Ct. 1993).
However, in Horner v. Boston Edison Co, 45 Mass. App. Ct. 139, 695 N.E.2d 1093, cert. denied
428 Mass. 1104 (Mass. 1998), the Appeals Court upheld the use of a release with which an
employee waived his right to bring claims against any customers of the staffing firm for injuries
covered by the state workers’ compensation statute. Also, in Molina v. State Garden, Inc., 31
Mass. L. Rptr. 412 (Mass. Super. Ct. 2013), the Superior Court found that a staffing client was
immune from liability under the workers' compensation exclusivity provisions after upholding
an alternate employer endorsement that specifically named the client and stated that the
workers' compensation insurance would apply as though the alternate employer was insured.
Appendix K
Occupational Safety and Health Administration RecordKeeping Rules
T WI BULLETIN NO. 1
Temporary Worker Initiative
Injury and Illness Recordkeeping Requirements
This is the first in a series of guidance documents issued under the
Occupational Safety and Health Administration’s (OSHA’s) Temporary Worker
Initiative (TWI). This Initiative focuses on compliance with safety and health
requirements when temporary workers are employed under the joint (or dual)
employment of a staffing agency and a host employer.
When a staffing agency supplies temporary
workers to a business, typically, the staffing
agency and the staffing firm client (also known
as the Host Employer) are joint employers of
those workers. Both employers are responsible
to some degree for determining the conditions
of employment and for complying with the law.
In this joint employment structure, questions
regarding which employer is responsible for
particular safety and health protections are
common. This bulletin addresses how to identify
who is responsible for recording work-related
injuries and illnesses of temporary workers on the
OSHA 300 log.
Injuries and illnesses should be recorded on only
one employer’s injury and illness log. 29 CFR
1904.31(b)(4). In most cases, the host employer is
the one responsible for recording the injuries and
illnesses of temporary workers.
Injury and illness recordkeeping responsibility
is determined by supervision. Employers must
record the injuries and illnesses of temporary
workers if they supervise such workers on
a day-to-day basis. 29 CFR 1904.31(a). Dayto-day supervision occurs when “in addition
to specifying the output, product or result
to be accomplished by the person’s work,
the employer supervises the details, means,
methods and processes by which the work is to
be accomplished.” See OSHA FAQ 31-1 at www.
osha.gov/recordkeeping. (Essentially, an employer
is performing day-to-day supervision when that
employer controls conditions presenting potential
hazards and directs the worker’s activities around,
and exposure to, those hazards.) In most cases,
the host employer provides this supervision.
While the staffing agency may have a
representative at the host employer’s worksite,
the presence of that representative does not
necessarily transfer recordkeeping responsibilities
to the staffing agency. As long as the host
employer maintains day-to-day supervision over
the worker, the host employer is responsible for
recording injuries and illnesses.
The non-supervising employer (generally the
staffing agency) still shares responsibility for
its workers’ safety and health. The staffing
agency, therefore, should maintain frequent
communication with its workers and the host
employer to ensure that any injuries and illnesses
are properly reported and recorded. Such
communication also alerts the staffing agency to
existing workplace hazards and to any protective
measures that need to be provided to its workers.
Ongoing communication is also needed after an
injury or illness so the recording employer can
know the outcome of the case.
The staffing agency and host employer must set
up a way for employees to report work-related
injuries and illnesses promptly and tell each
employee how to report work-related injuries
and illnesses. In addition, employees, former
employees, their personal representatives, and
their authorized employee representatives have
the right to access the injury and illness records.
29 CFR 1904.35.
In order to provide safe working conditions,
information about injuries and illnesses should
flow between the host employer and staffing
agency. If a temporary worker sustains an injury
or illness and the host employer knows about it,
the staffing agency should be informed, so the
staffing agency knows about the hazards facing
their workers. Equally, if a staffing agency learns
of an injury or illness, they should inform the
host employer so that future injuries might be
prevented, and the case is recorded. As a best
practice, the staffing agency and host employer
should establish notification procedures to ensure
that when a worker informs one employer of an
injury or illness, the other employer is apprised
as well. The details of how this communication
is to take place should be clearly established in
contract language.
Please note that the OSHA law prohibits
discrimination or retaliation against a worker for
reporting an injury or illness. Further information
on OSHA’s recordkeeping requirements is
available on the OSHA Recordkeeping website
(www.osha.gov/recordkeeping). Further
information on protecting temporary workers is
available at the OSHA Temporary Worker website
(www.osha.gov/temp_workers).
Twenty-five states and two territories operate
occupational safety and health programs
approved by OSHA. States enforce at least as
effective standards that may have different or
additional requirements. A list of State Plans is
available at www.osha.gov/dcsp/osp.
EXAMPLE SCENARIO
A manufacturer of metal cans, Metal Can Co., needs machine operators for a short-term increase in
production. Metal Can Co. contracts with Industrial Staffing, a staffing agency, to provide machine
operators to work shifts on a temporary basis. Industrial Staffing hires ten operators with minimal
knowledge of English and sends them to work onsite at Metal Can Co. The staffing agency also
hires a person to act as the temporary workers’ team lead who will translate the employers’ orders
and any provided training, and perform administrative duties such as time and attendance tracking.
At the worksite, a supervisor from Metal Can Co. assigns each of the temporary workers to a
particular machine. The supervisor also controls and checks on the employees’ work throughout
their shift. On their second day, one of the temporary workers suffers a finger amputation injury
from an inadequately guarded machine press. Who is responsible for recording this injury?
Analysis:
For recordkeeping purposes, Metal Can Co. must record the injury on its injury and illness log.
The key fact in this scenario is that Metal Can Co. supervises and controls the day-to-day work of
the temporary employees at its facility. The team leader provided by the staffing agency is not
empowered to modify or override the host employer’s directions and therefore is not considered a
supervisor under OSHA’s recordkeeping regulation. While Metal Can Co. should inform the staffing
agency of the injury, the staffing agency should not record it on its own log because the injury
should only be recorded on one set of injury and illness logs. Should Metal Can Co. refuse or ignore
its duty to record, the company may be subject to an OSHA citation.
HOW CAN OSHA HELP?
Workers have a right to a safe workplace. If you
think your job is unsafe or you have questions,
contact OSHA at 1-800-321-OSHA (6742). It’s
confidential. We can help. For other valuable
worker protection information, such as Workers’
Rights, Employer Responsibilities and other
services OSHA offers, visit OSHA’s Workers’ page.
The OSH Act prohibits employers from discriminating
against their employees for exercising their rights
under the OSH Act. These rights include reporting
an injury or illness, filing an OSHA complaint,
participating in an inspection or talking to an
inspector, seeking access to employer exposure
and injury records, and raising a safety or health
complaint with the employer. If workers have been
retaliated or discriminated against for exercising
their rights, they must file a complaint with OSHA
within 30 days of the alleged adverse action.
OSHA also provides help to employers. OSHA’s
On-site Consultation Program offers free and
confidential advice to small and medium-sized
businesses in all states across the country, with
priority given to high-hazard worksites. For
more information or for additional compliance
assistance, contact OSHA at 1-800-321-OSHA
(6742), or visit our web site at www.osha.gov.
Disclaimer: This bulletin is not a standard or regulation, and it creates no new legal obligations. It contains
recommendations as well as descriptions of mandatory safety and health standards. The recommendations are
advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful
workplace. The Occupational Safety and Health Act requires employers to comply with safety and health standards
and regulations promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, the Act’s General
Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized
hazards likely to cause death or serious physical harm.
For more information
Occupational
Safety and Health
Administration
www.osha.gov (800) 321-OSHA (6742)
U.S. Department of Labor
OSHA • NIOSH
RecommendedPractices
Protecting Temporary Workers
The Occupational Safety and Health Administration (OSHA) and the National Institute for
Occupational Safety and Health (NIOSH) are aware of numerous preventable deaths and
disabling injuries of temporary workers. One example is the death of a 27-year-old employed
through a staffing agency to work as an equipment cleaner at a food manufacturing plant.
While cleaning a piece of machinery, he came into contact with rotating parts and was pulled
into the machine, sustaining fatal injuries. The manufacturing plant’s procedures for cleaning
the equipment were unsafe, including steps in which cleaners worked near the machine
while it was energized and parts were moving. Additionally, while the company’s permanent
maintenance employees were provided with training on procedures to ensure workers were
not exposed to energized equipment during maintenance or cleaning, this training was not
provided to cleaners employed through the staffing agency. Source: Massachusetts Fatality
Assessment and Control Evaluation (FACE) Program, 11MA050.
Workers employed through staffing
agencies are generally called temporary or
supplied workers. For the purposes of these
recommended practices, “temporary workers”
are those supplied to a host employer and
paid by a staffing agency, whether or not the
job is actually temporary. Whether temporary
or permanent, all workers always have a
right to a safe and healthy workplace. The
staffing agency and the staffing agency’s
client (the host employer) are joint employers
of temporary workers and, therefore, both are
responsible for providing and maintaining a
safe work environment for those workers. The
staffing agency and the host employer must
work together to ensure that the Occupational
Safety and Health Act of 1970 (the OSH Act)
requirements are fully met. See 29 U.S.C. § 651.
The extent of the obligations of each employer
will vary depending on workplace conditions
1-800-321-OSHA (6742) • www.osha.gov
and should therefore be described in the
agreement or contract between the employers.
Their safety and health responsibilities
will sometimes overlap. Either the staffing
agency or the host employer may be better
suited to ensure compliance with a particular
requirement, and may assume primary
responsibility for it. The joint employment
structure requires effective communication
and a common understanding of the division
of responsibilities for safety and health. Ideally,
these will be set forth in a written contract.
OSHA and NIOSH recommend the following
practices to staffing agencies and host
employers so that they may better protect
temporary workers through mutual cooperation
and collaboration. Unless otherwise legally
required, these recommendations are for
the purpose of guidance and in some cases
represent best practices.
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1-800-CDC-INFO (1-800-232-4636) • www.cdc.gov/niosh
}} Evaluate the Host Employer’s Worksite. Prior
to accepting a new host employer as a client,
or a new project from a current client host
employer, the staffing agency and the host
employer should jointly review all worksites
to which the worker might foreseeably be
sent, the task assignments and job hazard
analyses in order to identify and eliminate
potential safety and health hazards and
identify necessary training and protections
for each worker. The staffing agency should
provide a document to the host employer that
specifies each temporary worker’s specific
training and competencies related to the tasks
to be performed.
are properly assessed and abated to protect
the workers. In assessing worksite hazards,
host employers typically have the safety and
health knowledge and control of worksite
operations. However, the staffing agency may
itself perform an inspection of the workplace,
if feasible, to conduct their own hazard
assessment or to ensure implementation
of the host employer’s safety and health
obligations for temporary workers.
}} Train Agency Staff to Recognize Safety and
Health Hazards. Many staffing agencies
do not have dedicated safety and health
professionals and, even when they do, these
experts cannot be everywhere at once. By
teaching agency representatives about basic
safety principles and the hazards commonly
faced by its temporary workers, the agency
will be better equipped to discover hazards
and work with the host employer to eliminate
or lessen identified workplace hazards before
an injury or illness occurs.
Staffing agencies need not become experts
on specific workplace hazards, but should
determine what conditions exist at the
worksite, what hazards may be encountered,
and how to best ensure protection for the
temporary workers. Staffing agencies,
particularly those without dedicated safety
and health professionals on staff, should
consider utilizing a third-party safety and
health consultant. For example, staffing
agencies may be able to utilize the safety
and health consultation services provided
by their workers’ compensation insurance
providers. These consultation services are
often offered to policyholders at little to no
charge. Employers (staffing agencies and
host employers) should inquire with their
insurance providers about these services.
Small and medium-sized businesses may
request assistance from OSHA’s free on-site
consultation service. On-site consultation
services are separate from enforcement and
do not result in penalties or citations.
}} Ensure the Employer Meets or Exceeds the
Other Employer’s Standards. When feasible,
the host employer and staffing agency should
exchange and review each other’s injury and
illness prevention program. Host employers
should also request and review the safety
training and any certification records of the
temporary workers who will be assigned to
the job. Host employers in certain industries,
for example, will only accept bids from
and hire staffing agencies that the host
has previously verified as meeting the host
employer’s safety standards. Similarly, some
staffing agencies work only with clients that
have robust safety programs.
}} Assign Occupational Safety and Health
Responsibilities and Define the Scope of
Work in the Contract. The extent of the
responsibilities the staffing agency and the
host employer have will vary depending
on the workplace conditions and should
be described in their agreement. Either the
staffing agency or the host employer may
be better suited to ensure compliance with
If information becomes available that shows
an inadequacy in the host employer’s job
hazard analyses, such as injury and illness
reports, safety and health complaints or
OSHA enforcement history, the staffing
agency should make efforts to discuss
and resolve those issues with the host
employer to ensure that existing hazards
1-800-321-OSHA (6742) • www.osha.gov
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1-800-CDC-INFO (1-800-232-4636) • www.cdc.gov/niosh
a particular requirement, and may assume
primary responsibility for it. When feasible,
the agency-host contract should clearly state
which employer is responsible for specific
safety and health duties. The contract should
clearly document the responsibilities to
encourage proper implementation of all
pertinent safety and health protections for
workers. This division of responsibilities
should be reviewed regularly.
might be prevented, and the case is recorded
appropriately. The parties should therefore
also discuss a procedure to share injury and
illness information between the employers,
ideally specifying that procedure contractually.
NOTE on Injury and Illness Recordkeeping
Requirements: Both the host employer and
staffing agency should track and where
possible, investigate the cause of workplace
injuries. However, for statistical purposes,
OSHA requires that injury and illness records
(often called OSHA Injury and Illness Logs) be
kept by the employer who is providing dayto-day supervision, i.e., controlling the means
and manner of the temporary employees’
work (the host employer, generally). See
29 CFR 1904.31(b)(2). The agency-host
contract should therefore identify the
supervising employer and state that this
employer is responsible for maintaining
the temporary workers’ injury and illness
records. Employers cannot discharge or
contract away responsibilities that pertain to
them under law. Further, the contract should
specify which employer will make the records
available upon request of an employee or an
employee representative.
The tasks that the temporary worker is
expected to perform, and the safety and
health responsibilities of each employer,
should be stated in the agency-host contract
and should be communicated to the worker
before that worker begins work at the job site.
For example, should the job tasks require
personal protective equipment, the contract
should state what equipment will be needed
and which employer will supply it. The worker
should be informed of these details before
beginning the job. Clearly defining the scope
of the temporary worker’s tasks in the agencyhost contract discourages the host employer
from asking the worker to perform tasks
that the worker is not qualified or trained to
perform or which carry a higher risk of injury.
Defining, clarifying, and communicating the
employers’ and worker’s responsibilities
protects the workers of both the staffing
agency and of the host employer. The contract
should specify who is responsible for all such
communications with the temporary worker.
The supervising employer is required to
set up a method for employees to report
work-related injuries and illnesses promptly
and must inform each employee how to
report work-related injuries and illnesses.
However, both the staffing agency and the
host employer should inform the temporary
employee on this process and how to report
a work-related injury or illness. See 29 CFR
1904.35(b).
}} Injury and Illness Tracking. Employer
knowledge of workplace injuries and
investigation of these injuries are vital to
preventing future injuries from occurring.
Information about injuries should flow
between the host employer and staffing
agency. If a temporary worker is injured and
the host employer knows about it, the staffing
agency should be informed promptly, so the
staffing agency knows about the hazards
facing its workers. Equally, if a staffing agency
learns of an injury, it should inform the host
employer promptly so that future injuries
1-800-321-OSHA (6742) • www.osha.gov
No policies or programs should be in place
that discourage the reporting of injuries,
illnesses or hazards. The OSH Act prohibits
employers from retaliating against a worker
for reporting an injury or illness, including
for filing a workers’ compensation claim for a
work-related condition.
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1-800-CDC-INFO (1-800-232-4636) • www.cdc.gov/niosh
}} Conduct Safety and Health Training and New
Project Orientation. OSHA standards require
site- and task-specific safety and health
training. The training must be in a language
the workers understand. Training helps to
protect the workers of both the staffing
agency and the host employer.
•• First Aid, Medical Treatment, and
Emergencies. Procedures should be in
place for both reporting and obtaining
treatment for on-the-job injuries and
illnesses. Temporary employees should be
provided with information on how to report
an injury and obtain treatment on every
job assignment. Host employers should
train temporary employees on emergency
procedures including exit routes.
The training of temporary workers is a
responsibility that is shared between the
staffing agency and the host employer.
Staffing agencies should provide general
safety and health training applicable to
different occupational settings, and host
employers provide specific training tailored to
the particular hazards at their workplaces. The
host employer and the staffing agency should
each provide — separately or jointly — safety
and health orientations for all temporary
workers on new projects or newly-placed
on existing projects. The orientation should
include information on general workerprotection rights and workplace safety and
health. At least one of the joint employers,
generally the host employer, must provide
worksite-specific training and protective
equipment to temporary workers, and identify
and communicate worksite-specific hazards.
The temporary workers’ tasks, as defined
by the agency-host contract, should also
be clearly communicated to the workers
and reviewed with the host employer’s
supervisor(s). Host employers should provide
temporary workers with safety training that
is identical or equivalent to that provided
to the host employers’ own employees
performing the same or similar work. Host
employers should inform staffing agencies
when such site-specific training for temporary
workers has been completed. Informing
workers and supervisors of their respective
responsibilities agreed upon by the joint
employers protects the workers of both the
staffing agency and the host employer.
1-800-321-OSHA (6742) • www.osha.gov
}} Injury and Illness Prevention Program. It is
recommended that staffing agencies and
host employers each have a safety and health
program to reduce the number and severity
of workplace injuries and illnesses and ensure
that their temporary workers understand it
and participate in it. The employers’ safety
programs should be communicated at the
start of each new project, whenever new
temporary workers are brought onto an
existing project, or whenever new hazards
are introduced into the workplace.
NOTE: Employers are required to have
hazard-specific programs when workers are
exposed to certain hazards. Such programs
include bloodborne pathogens, hearing
conservation, hazard communication,
respiratory protection, and control of
hazardous energy (lock-out/tag-out).
Contractors and employers who do
construction work must comply with
standards in 29 CFR 1926, Subpart C,
General Safety and Health Provisions.
These include the responsibilities for each
contractor/employer to initiate and maintain
accident prevention programs, provide for
a competent person to conduct frequent
and regular inspections, and instruct each
employee to recognize and avoid unsafe
conditions and know what regulations are
applicable to the work environment.
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1-800-CDC-INFO (1-800-232-4636) • www.cdc.gov/niosh
•• Injury and Illness Prevention Program
Assessments. The employers should
identify and track performance measures
key to evaluating the program’s
effectiveness. For both staffing agencies
and host employers, a quality program
will stipulate how there will be ongoing
assessments to evaluate the consistency,
timeliness, quality and adequacy of the
program. Leading indicators, such as
training and number of hazards identified
and corrected, should be included in the
assessments. Generally speaking, these
assessments should take place at least on
an annual basis with a competent internal
team or a combined internal and external
team. The value of these assessments is
the resulting prioritized recommendations
for program improvement. The staffing agency should have a written
procedure for workers to report any hazards
and instances when a worker’s tasks are
altered by the host employer from those
previously agreed upon. The staffing agency
and host employer should inform workers
how to report hazards and/or changes to job
tasks. For example, some staffing agencies
have a hotline for their workers to call to
report problems at the host employer’s
worksite. The staffing agency distributes this
phone number during the orientation.
The staffing agency should follow up on a
worker’s safety and health concerns and
any complaints with the host employer, as
well as investigate any injuries, illnesses and
incidents of close calls.
•• Incidents, Injury and Illness Investigation.
In addition to reporting responsibilities,
employers should conduct thorough
investigations of injuries and illnesses,
including incidents of close-calls, in order
to determine what the root causes were,
what immediate corrective actions are
necessary, and what opportunities exist to
improve the injury and illness prevention
programs. It is critical that both the
staffing agency and host employer are
engaged in partnership when conducting
these investigations.
How Can OSHA Help?
OSHA has a great deal of information to
assist employers in complying with their
responsibilities under the law. Information on
OSHA requirements and additional health and
safety information is available on the OSHA
website (www.osha.gov). Further information
on protecting temporary workers is available at
the OSHA Temporary Worker webpage (www.
osha.gov/temp_workers).
Workers have a right to a safe workplace
(www.osha.gov/workers.html#2). For other
valuable worker protection information, such
as Workers’ Rights, Employer Responsibilities
and other services OSHA offers, visit OSHA’s
Workers’ page.
}} Maintain Contact with Workers. The staffing
agency should establish methods to maintain
contact with temporary workers. This can
be as simple as the agency representatives
touching base with the workers throughout
the temporary assignment, such as when the
representatives are at the site to meet with
the host employer or to drop off paychecks,
or by phone or email. The staffing agency
has the duty to inquire and, to the extent
feasible, verify that the host has fulfilled its
responsibilities for a safe workplace.
1-800-321-OSHA (6742) • www.osha.gov
The OSH Act prohibits employers from
retaliating against their employees for exercising
their rights under the OSH Act. These rights
include raising a workplace health and safety
concern with the employer, reporting an
injury or illness, filing an OSHA complaint,
and participating in an inspection or talking to
an inspector. If workers have been retaliated
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1-800-CDC-INFO (1-800-232-4636) • www.cdc.gov/niosh
How Can NIOSH Help?
against for exercising their rights, they must file
a complaint with OSHA within 30 days of the
alleged adverse action. For more information,
please visit www.whistleblowers.gov.
The National Institute for Occupational Safety and
Health (NIOSH) is the federal agency that conducts
research and makes recommendations to prevent
worker injury and illness. Recommendations for
preventing worker injuries and illnesses across all
industries and for a wide variety of hazards are
available on the NIOSH website (www.cdc.gov/
niosh). To receive documents or more information
about occupational safety and health topics,
please contact NIOSH at 1-800-CDC-INFO (1-800232-4636), TTY 1-888-232-6348.
OSHA can help answer questions or concerns
from employers and workers. To reach your
regional or area OSHA office, go to OSHA’s
Regional and Area Offices webpage (www.
osha.gov/html/RAmap.html) or call 1-800321-OSHA (6742). OSHA also provides help to
small and medium-sized employers. OSHA’s
On-site Consultation Program offers free and
confidential advice to small and medium-sized
businesses in all states across the country,
with priority given to high-hazard worksites.
On-site consultation services are separate
from enforcement activities and do not result
in penalties or citations. To contact OSHA’s
free consultation program, or for additional
compliance assistance, call OSHA at 1-800-321OSHA (6742).
The NIOSH Health Hazard Evaluation (HHE)
Program provides advice and assistance
regarding work-related health hazards. NIOSH
may provide assistance and information by
phone, in writing, or may visit the workplace.
The HHE Program can be reached at www.cdc.
gov/NIOSH/HHE or 513-841-4382.
If you think your job is unsafe or you have
questions, contact OSHA at 1-800-321-OSHA
(6742). It’s confidential. We can help.
Disclaimer: This document is not a standard or regulation, and it creates no new legal obligations. It contains
recommendations as well as descriptions of mandatory safety and health standards. The recommendations are
advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful
workplace. The Occupational Safety and Health Act requires employers to comply with safety and health standards and
regulations promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, the Act’s General Duty
Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards
likely to cause death or serious physical harm.
U.S. Department of Labor
1-800-321-OSHA (6742) • www.osha.gov
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1-800-CDC-INFO (1-800-232-4636) • www.cdc.gov/niosh
DHHS (NIOSH) Publication Number 2014-139
Workers may file a complaint to have OSHA
inspect their workplace if they believe that their
employer is not following OSHA standards or that
there are serious hazards. Employees can file a
complaint with OSHA by calling 1-800-321-OSHA
(6742) or by printing the complaint form and
mailing or faxing it to your local OSHA area office.
Complaints that are signed by an employee are
more likely to result in an inspection.
OSHA - 3735-2014
The NIOSH Fatality Assessment and Control
Evaluation (FACE) program investigates selected
work-related fatalities to identify high-risk work
injury situations and to make recommendations
for preventing future similar deaths. Investigations
are conducted by NIOSH and state partners.
For more information and links to reports of
temporary worker deaths, please visit www.cdc.
gov/niosh/face. The Michigan and Massachusetts
FACE programs have developed 1-2 page Hazard
Alerts on temporary worker deaths that are
available on their websites (www.oem.msu.edu/
userfiles/file/MiFACE/TemporaryWorkerHA17.pdf
and www.mass.gov/eohhs/docs/dph/occupationalhealth/temp-workers.pdf).