April 6, 1999

Mr. Peter A. Susser
Littler Mendelson
1225 I Street, N.W.
Washington, D.C. 20005-3914

Dear Mr. Susser:

This is in response to your letter of February 12, requesting compliance assistance from the Occupational Safety and Health Administration (OSHA) regarding the revised powered industrial truck operator training standard 29 CFR 1910.178(l).

1910.178(l)(1) states, "The employer shall ensure that each powered industrial truck operator is competent to operate a powered industrial truck safely, as demonstrated by the successful completion of the training and evaluation specified in this paragraph (l)."

Your question relates to whether your client, a warehouse operator, has a regulatory responsibility to assess and train employees that are not direct employees of your client. These employees are engaged in moving goods on its premises, often with the use of your client's powered industrial trucks. These employees include, (a) individuals who may be drivers or helpers employed by the motor carriers who deliver or pick up shipment; (b) drivers of the commercial motor vehicle who are "owner operators," true independent contractors who serve multiple shippers and consignees in the course of maintaining their trucking business; and (c) individuals who may participate in unloading deliveries at the warehouse, so-called "lumpers," who are individuals not employed in a traditional sense by either your client, the warehouse operator, or the motor carrier/independent contractor.

Pursuant to the revised powered industrial truck operator training standard, employers are required to complete the designated initial training and evaluation for employees who operate powered industrial trucks by December 1, 1999. Although the revised standard does contain specific training requirements, the standard does not create a new obligation to adequately train employees who operate powered industrial trucks; that obligation existed under OSHA's earlier standard. The revised standard simply clarifies the nature of the training that your client, and other similarly situated employers, must provide to employees who operate powered industrial trucks.

As you acknowledge in your letter, your client is responsible for assuring that its employees are properly trained before they are permitted to operate powered industrial trucks. Likewise, your client is responsible for assuring that the "lumpers," which it invites onto its property to assist in the loading or unloading of materials, are properly trained before they are permitted to operate powered industrial trucks. While your client may have neither a contractual nor a long-term relationship with these individuals, they appear, from the description in your letter, to be your client's employees, since your client pays them, supervises and controls their activities, and has the power to terminate their working relationships at the warehouse.

Further, with respect to truck drivers who are not employed by your client and with respect to lumpers who may be retained by those drivers, your client must take steps to assure that these individuals are properly trained before they are permitted to operate powered industrial trucks at your client's facility. At a minimum, an employer is responsible for the safety of its own employees. Thus, if the unsafe operation of powered industrial trucks could endanger your client's employees, your client would be obligated to prevent such danger by satisfying itself that powered industrial truck operators have been properly trained. Moreover, your client also generally would be responsible for the overall safety and health conditions on the work site for the benefit of all employees. Indeed, as your client would likely concede, its warehouse is a safer place for all employees to work, if all persons are required to receive appropriate training before they are allowed to operate powered industrial trucks. This does not mean that your client is required to train powered industrial truck drivers who are not its employees. It must, however, ensure that such individuals have been trained in accordance with the provisions of the standard before they are permitted to operate powered industrial trucks at its warehouse.

Thank you for your interest in occupational safety and health. If we can be of any further assistance, please contact [the Office of General Industry Enforcement] at (202) 693-1850.

Sincerely,



Richard Fairfax, Director
Directorate of Compliance Programs

[Corrected January 22, 2008]