June 23, 2003

Dave Chamberlain
Director of Loss Control Services
4600 Fuller Drive
Irving, Texas 75038

Dear Mr. Chamberlain:

Thank you for your April 30, 2003 letter to the Occupational Safety and Health Administration (OSHA) regarding the Injury and Illness Recording and Reporting Requirements contained in 29 CFR Part 1904.

Your question relates to participation by professional sports teams in the Bureau of Labor Statistics (BLS) Survey of Occupational Injuries and Illnesses. The BLS survey provides data used to compile the nationwide annual statistical summary of work-related injuries in all industries, and is unrelated to OSHA's enforcement of workplace safety and health requirements. An employer selected by BLS to participate in the survey must provide information about those employee injuries and illnesses recorded on the employer's OSHA Log of Work-Related Injuries and Illnesses.

Your firm insures some professional sports teams selected for participation in the BLS survey. You state that these teams have historically omitted information on the injuries and illnesses of their players from their survey responses in the belief that OSHA considers professional football and baseball players to be "independent contractors" rather than "employees." You ask for a letter stating this interpretation so that you can resolve a dispute between the teams and some states that have challenged the adequacy of the teams' survey responses.

OSHA's Recordkeeping rule issued January 19, 2001 provides that an employer must record on the OSHA Log the injuries and illnesses of "employees" (see 29 CFR 1904.31). The preamble to the rule explains that "independent contractors" are not employees; therefore, injuries and illnesses sustained by independent contractors are not recordable under the Recordkeeping rule (66 Fed. Reg. 6038, January 19, 2001). To determine whether a hired party is an independent contractor or an employee, the hiring party must consider how much control it retains over the manner and means by which the end product or service is accomplished (Id). The following factors are relevant to this enquiry: the degree of skill required by the hired party; whether the hired or hiring party supplies the tools or equipment; the location of the work; the duration of the relationship between the parties; whether the hiring party has discretion to assign additional work to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hired party is in business; the provision of employee benefits; and the tax treatment of the hired party. These factors are referred to as the "common law test". See Loomis Cabinet Co. v. OSHRC and Lynn Martin, 20 F.3d 938, 942 (9th Cir. 1994 ) and discussion at 66 Fed. Reg. 6038.

I am not aware of any formal OSHA interpretation or any directly relevant case law on whether players on professional sports teams should be considered independent contractors or employees under the common law test. This determination must be made on a case-by-case basis after considering all of the circumstances affecting the relationship between the teams and their players and applying the common law factors. The common law test is used for a variety of purposes in addition to OSHA's recordkeeping rule, and so the outcome of the analysis for a particular circumstance and a particular player may already be known and established.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep appraised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please contact the Division of Recordkeeping Requirements at 202-693-1702.

Sincerely,


Frank Frodyma
Acting Director, Directorate of Evaluation and Analysis