March-April 2019

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24 PalletCentral • March-April 2019 n April 1, 2019, the U.S. Department of Labor announced a proposed rule that will revise and clarify the responsibilities of employers and "joint employers" to employees in certain "joint employer" arrangements. The proposal, if adopted, will be the first substantial change to DOL regulations on this topic since 1958. The changes come in the form of amendments to the Fair Labor Standards Act (FLSA), which governs such issues as minimum wage law, overtime payment and worker classification, and child labor restrictions. While addressing responsibilities to pay the minimum wage and overtime, it spills over into definitions of "joint employer" that are also used for OSHA determinations of liability. There is a 60-day comment period on the proposal, but this could be extended if requested, and there may also be public hearings scheduled this year. From a workplace safety perspective, how employers (and workers) are classified can be significant in terms of which entity has responsibility for employee training, provision of personal protective equipment, worker supervision, and discipline. There are a couple of different vantage points. In one scenario, two companies are deemed to be joint employers, from the perspective of being affiliates, subsidiaries, or franchiser/franchisees. This can expand the overall company size to affect penalty amounts. A finding that a joint employer relationship exists can result in imputation of violations from one operation to the other, for purposes of triggering "repeat" OSHA violations (where, currently, penalties can reach $132,598 per affected worker if the company had a prior violation of the same or similar standard become a final order within the previous five years). In addition, actions taken by one of the "joint employers" potentially can be imputed to the other employers in the relationship for purposes of find that a "recognized hazard" exists with a feasible abatement action, for purposes of OSHA enforcement under its General Duty Clause. Finally, the scope of corporate-wide settlement agreements can be affected in terms of which establishments within a family of related companies must follow the terms of the CSA. The other variation is where multiple independent companies occupy the same worksite, and are viewed as having liability for violations under one of four theories: (1) Controlling employer (the host employer or "general contractor"); (2) Creating employer (the entity that creates the violative condition, even if they do not have workers exposed to any hazard directly); (3) Exposing employer (the entity whose workers are exposed to a hazardous condition, even if that employer did not create the condition); and (4) Correcting employer (the entity responsible, either by contract or by practice, for correcting any unsafe or unhealthful conditions). From the DOL/OSHA perspective, the joint employer concept SAFETY O By Adele L. Abrams, Esq., CMSP "Joint Employer" Rule Changes Considered

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