July 10, 2007 The Pump Handle 1Comment

If you have a job, do you know who your employer is? The answer isn’t always straightforward, César Cuauhtémoc García Hernández points out in a recent Boston College Third World Law Journal article, and the implications can be profound.

In “Feeble, Circular, and Unpredictable: OSHA’s Failure to Protect Temporary Workers,” García details the disadvantages temporary workers face. Temporary work is unstable, and few of the workers – who tend to be women, blacks, and Latinos – receive health insurance, paid vacation days, sick leave, or pension plans. The fact that many temporary workers are recruited and paid by temporary help firms, and then assigned to user firms, complicates the question of who’s actually employing them and is responsible for providing a hazard-free workplace. García explains:

The importance of temporary workers’ legal characterization as “employer” and “employee” cannot be overstated because most workplace safety protections are only afforded to those workers statutorily defined as “employees.” Indeed, the Court of Appeals for the District of Columbia determined that “OSHA . . . covers every employer whose business affects interstate commerce,” but qualified this statement by noting, “the protection of the health of employees is the overriding concern of OSHA.” Implicitly, the court’s determination that OSHA covers only “employers” and seeks to protect “employees” limits OSHA’s applicability to instances in which an employment relationship exists. Moreover, OSHA defines an “employer” as a “person engaged in a business affecting commerce who has employees . . . .” It goes on to define “employees” as “an employee of an employer who is employed in a business of his employer which affects commerce.” These circular definitions are, to say the least, uninformative and leave much of the task of determining when OSHA applies to judicial interpretation.

Courts have used different tests to determine employment status for purposes of labor and employment laws. The most recent, referred to as the Darden test (after the case Nationwide Mutual Ins. v. Darden), involves 13 factors, including the putative employer’s right to control the manner and means of the work, the location of the work, and whether the work is part of the hiring party’s regular business. The various tests, García concludes, “afford employers many legal loopholes through which they can jump to avoid liability for workplace safety conditions.”

García recommends directly revising the statutory definition of “employee” and “employer” to expressly include temporary workers and temporary hiring firms. These terms could also be judicially interpreted to protect temporary workers under OSHA. García reminds us of the importance of the objectives behind that act:

To resolve statutory ambiguity in applying OSHA, the Act should be interpreted so as to fulfill “the objectives Congress sought to achieve through this legislation” by applying a purposive approach. A purposive approach ensures that the statute’s goals are achieved, rather than merely applied formalistically or mechanically. Use of a purposive approach requires measurement of the success of interpretations of employment status by the degree to which they effectuate Congress’ intent to protect all workers.

Interpreting OSHA purposively is particularly appropriate because of the statute’s textual explanation of its goals. In devising the Act, Congress embedded in the statutory text its motivations in enacting the law and its intended goal: “The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.” Importantly, the stated purpose identifies “personal injuries and illnesses arising out of work situations” as the problem that OSHA is intended to rectify. Congress did not state nor even suggest that “personal injuries and illnesses arising out of work situations” were only detrimental to the nation’s economy when they occurred to particular types of workers. On the contrary, the statute clearly expresses a congressional finding that such injuries and illnesses are economically detrimental whenever they occur because they adversely impact interstate commerce. Furthermore, while the Senate explicitly addressed injuries and illnesses prevalent in various industries, it did not discuss the employment status of the injured or ill workers it intended OSHA to cover. The only limitation included within the statutory purpose is that the injury or illness must arise from engagement in a “work situation.” Consequently, all individuals who are injured or become ill from a work situation fall within the purview of the statute’s purpose as contemplated by the Senate and explicitly stated in its text.

The full paper is available from the Social Science Research Network.

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