July 2, 1992

Mr. Neil H. Wasser
Constangy, Brooks & Smith
Suite 2400
230 Peachtree Street, N.W.
Atlanta, Georgia 30303-1557

Dear Mr. Wasser:

Thank you for your letter of April 10 asking for a clarification of the OSHA injury and illness recordkeeping requirements for on- site employees of a temporary employment agency. After reviewing your description of the employment arrangement, it appears that the using firm in question is providing the day-to-day supervision and thus has the amount of control necessary for recording the work related injuries and illnesses for these workers. Based on the limited discussion of supervision in your letter it appears that the company is utilizing workers from a temporary help agency on an on-going basis to produce its product, or output.

The enclosed Recordkeeping Guidelines for Occupational Injuries and Illnesses discusses the employer relationship. On page 24 of the guidelines, Question A-2 addresses the use of workers from a temporary help service on a contract basis. The answer states that the records should be kept by the firm responsible for the day-to-day direction of the employees activities.

While the workers are accompanied by a supervisor and timekeeper from the temporary help agency who seem to generally oversee attendance, provide discipline, etc., the temporary workers are merged in with the company's permanent workforce on assembly lines. It appears that a company supervisor supervises the details, means, methods and processes by which the work objective is accomplished by the temporary workers. Although persistent or serious production problems and disciplinary problems are referred to the temporary agency supervisor, the company supervisor appears to be providing the detailed day-to-day supervision of the employees.

We have enclosed a copy of the Dayton Tire case (OSAHRC Docket No. 2719, January 29, 1975) upon which the Guideline interpretation on this subject is based. While the court mentions the non-supervisory factors your letter discusses in detail (and is mentioned in our Guidelines) the determining factor for recordability is the day-to-day supervision as discussed in the Guidelines.

If you wish to discuss these issues further or have any questions, please contact my staff at (202) 523-1463.

Sincerely,



Stephen A. Newell
Acting Director
Office of Statistics

Enclosures



April 10, 1992

Mr. Stephen A. Newell
Acting Director
Occupational Safety and Health
Administration Office of Statistics
Room N-3507
200 Constitution Avenue, N.W.
Francis Perkins Building
Washington, D.C. 20210

Dear Mr. Newell:

I am writing on behalf of a client who is seeking a formal opinion concerning whether certain individuals should be considered its employees or employees of a temporary help service for purposes of OSHA recordkeeping under 29 C.F.R. 1904.1 et seq. Because this appears to be a close question factually, our client is soliciting OSHA's guidance so that it may comply with its recordkeeping obligations under the Act. Outlined below are the factual circumstances underlying this opinion request.

The Company in question has three assembly facilities located in three separate states. Each facility employs approximately 50 full time employees. Because of dramatic daily and weekly fluctuations in each facility's assembly production demands, each facility relies on a local office of a national Temporary Employment Agency to provide the manpower needed to meet its assembly requirements.(*) The Temporary Employment Agency's local offices are called by the facilities on a daily basis and are advised of the number of employees that will be needed. The facilities may use anywhere from 30 to 150 Temporary Employment Agency employees each day.

____________________________

(*) The Temporary Employment Agency is part of a Corporation that owns agencies in a number of states. In one state alone, the agency provides temporary manpower to over 200 different businesses.

The Temporary Employment Agency considers the employees in question to be its employees. The Agency advertises for the employees, takes employment applications, interviews and screens applicants, and places selected employees on a call list. The Temporary Employment Agency has sole discretion in determining which employees will be sent to work. After the Temporary Employment Agency is contacted by the Company (or any other company in the area who uses the Agency's services), the Agency calls the number of employees requested and tells the employees when and where to report and the type of work they will be performing. The Temporary Employment Agency conducts hazard communication training with the employees based on the hazards in the workplace where they will be working. When specialized skills are required such as fork lift driving, the Temporary Employment Agency ensures that the employees are properly certified. The Temporary Employment Agency also conducts a general human relations/quality training program (at the request of the Company) for all employees it intends to send to the Company. Presumably, the Agency provides whatever pre-employment training is requested by any of the companies that use its services.

In addition to making all hiring decisions, the Temporary Employment Agency deducts state and federal taxes from the employees' pay, it provides workers' compensation and unemployment compensation coverage, and it pays the employees on its Agency checks on a weekly basis. Each year, the Temporary Employment Agency issues a W-2 form to each of the individuals it employed during the year. The Temporary Employment Agency maintains an OSHA 200 Log at each of its local offices. The Agency's local offices are responsible for recording injuries and illnesses occurring to their employees assigned to the using companies. To our client's knowledge, the employees in question consider themselves employed by the Temporary Employment Agency.

As part of the Company's agreement with the Temporary Employment Agency, whenever any Agency employee is present on- site at a Company facility, the Agency also sends one or more Agency supervisors. The Agency supervisor(s) uses a permanent office on each facility's premises and the Agency is charged by the Company for use of the office space at the same rate per square foot that the Company pays to lease the building. Inside the Agency's on-site office, the Agency supervisor(s) uses a computer, copier and fax machine owned by the Agency. The Agency also has an independent telephone line in the office paid for by the Temporary Employment Agency and listed in the telephone directory under the Agency's name. In addition to providing a supervisor(s) at any time a Temporary Employment Agency employee is working at the contracting facility, the Agency also sends a timekeeper who monitors and documents the hours worked by Agency employees on each assembly line within the facility. The Temporary Employment Agency timekeepers sign Temporary Employment Agency employees in and out of work on their respective lines and the time sheets are then signed by a Company supervisor. It is these time sheets that form the basis for the invoices sent to the Company by the Agency.

On each assembly line within a facility, there is a Company supervisor and/or crew leader who is responsible for ensuring a quality product. The Company's supervisor trains the Temporary Employment Agency employees in how to assemble the product properly and addresses any technical assembly questions or problems. If a minor assembly problem is observed by the Company supervisor, the supervisor will call the problem to the Agency employee's attention. Similarly, if a Company supervisor observes an Agency employee violating a safety rule (e.g. failure to wear eye protection), the supervisor will also bring this fact to the Temporary Employment Agency employee's attention. However, once the Temporary Employment Agency employee is trained, any persistent or serious production problems and all disciplinary problems are taken to the Agency supervisor who has sole responsibility for investigating the problem and addressing it with the Agency employee. The Company's supervisors have no authority to counsel, discipline, or terminate Agency employees. All such actions, as well as all hiring decisions, are made only by Agency supervisors. While Agency employees work the same scheduled hours as Company employees, Agency supervisors have the exclusive authority to allow Agency employees to report late, leave early, etc. Additionally, Agency supervisors decide whether and when Agency employees will receive raises. Temporary Employment Agency supervisors are able to remain in contact with the Company's supervisor(s) by walkie-talkie during all times in which the Temporary Employment Agency supervisor(s) are in their office.

Temporary Employment Agency employees go on breaks and lunches at the same time as Company employees. The Agency employees use the same restrooms, vending machines, parking lots and tools as Company employees. Agency employees are paid at different rates than Company employees and paychecks for Agency employees are either handed out by the Agency supervisor(s) or picked up by Agency employees at the Agency's local office. Company employees receive their paychecks from the Facility Manager or their immediate company supervisor. The Temporary Employment Agency provides its employees with benefits that are wholly independent of the Company's benefit programs. For example, Agency employees are eligible to participate in the Agency's medical insurance program after 60 days of employment by the Agency, but must pay the entire premium. After on year, Agency employees may participate in the Agency's 401K plan. After 1800 hours of work during a year, (for any one or multiple Agency customers), Agency employees are eligible for one week of paid vacation. Company employees are automatically covered in one of two Company health programs after 90 days of employment. Under the Company's basic health plan, the Company pays the entire premium and the employee is responsible for paying only the dependent coverage. The Company provides its employees with 10 paid holidays each year and vacation begins with one week after one year and gradually increases with seniority.

The Temporary Employment Agency sends regular invoices to the Company for the manpower provided. The invoices are based on the total hours worked by the Agency employees at the Company. The invoices do not reference Agency employees by name, but instead indicate only the number of hours worked at the various rates agreed to between the Company and Temporary Employment Agency. While some Temporary Employment Agency employees may work at the Company for as long as a year, the majority of Agency employees work at the Company for no longer than approximately 13 consecutive weeks.

Based on the above facts, I am requesting a formal opinion on whether the temporary employees in question are for OSHA recordkeeping purposes "employees" of the contracting company or employees of the Temporary Employment Agency.

Please feel free to contact me if any additional information is needed. Thanks for your assistance in resolving this issue.

Sincerely,



Neil H. Wasser

NHW/caw