On May 15, 2019, Staffing Industry Analysts (SIA) reported the story of an injured contractor at a Tesla Motors facility in Fremont, California. Parris Law, the legal firm engaged to represent the worker, reached a $13 million settlement in the case. Tesla emailed SIA a statement that explained: “This incident occurred in 2014 and given that it involved two contractors on Tesla’s property, the contractor’s employer, West Valley, will pay the bulk of the settlement.” While many of developments we read about in the staffing industry showcase sexy new tech or intriguing hiring innovations, it’s important for staffing professionals to keep their attention trained on all the unsexy but critical aspects of the business that protect workers, clients, MSPs, and the staffing firms themselves. The situation at Tesla serves as a strong call for revisiting the importance of proper safety training and the sometimes hazy world of OSHA’s “joint responsibility.”
On the Job, Work Hard and Play Safe
We all love the idea of “work hard and play hard,” but the latter part of that sentiment should apply only to afterhours pursuits. On the job, it’s about playing safe. Otherwise, to invoke another beloved expression, “it’s all fun and games until someone loses an eye.”
Over the past decade, the staffing industry has made great strides in breaking new ground on digital technologies, machine learning, social media, and enhanced recruiting techniques that mirror cutting-edge sales and marketing strategies. It’s fair to say the industry seeks transformation, moving away from its image as a bastion of tradition to a pioneer standing at the edge of a wilderness filled with untapped opportunity. The news is exciting and hip. AI company AllyO raises $45 million in series B funding. Businesses such as Icahn Automotive are creating technical recruiting programs reminiscent of trade schools to attract new STEM talent. ERE Media posits that artificial intelligence (AI) could help women in recruiting.
These stories capture our interests and spark our imaginations. They keep us motivated to push boundaries and evolve in the space. On the flip side, they can also distract us from the less thrilling but imperative necessities of the job. We’ve seen a lot of shiny keys over the past five years. Conversations about workplace safety, for instance, have come to emphasize the cool advances in wearable technology, big data for predictive performance analytics and risk, mindfulness and mediation programs, nap rooms, you name it. Without a doubt, these marvels are innovative, useful, fascinating, and worth continued exploration. Yet we can’t divert our focus from the stoic mandates of regulations, compliance, and risk mitigation.
The Tesla Trouble
On May 15, a year after the injury occurred at Tesla Motors, Parris Law announced the settlement. The story drew attention because the Occupational Health and Safety Administration (OSHA) has steadily been expanding its concerns about contractors and which parties bear responsibility for their wellbeing. With contingent labor now dominating a substantial portion of the workforce, OSHA’s efforts to increase protections for non-traditional employees make sense. But they also place new burdens—and some confusion—on staffing providers, MSPs, and their clients.
In its official press statement, Parris Law described the details of the case and the victim, a janitor named Teodora Tapia:
While trying to move a European version of a Tesla Model S to a separate location within the warehouse, the defendant, Joseph Aguilar mistakenly put the car into drive and crashed into Teodora, crushing her lower extremities. Because of the European layout of the Tesla that Aguilar was driving and the fact that he wasn’t certified to operate the vehicle, Aguilar lost control of the vehicle and pinned Teodora between two bumpers.
Teodora is now permanently disabled and is unable to work or provide for her family. While she will never be the same, this recovery will help her with ongoing medical care and the needs of her family.
Although the accident occurred on Tesla’s grounds, and involved Tesla’s property, the staffing firms who employed both workers incurred the bulk of the financial restitution and penalties. Tesla also alluded to this in its communications with SIA: “We care deeply about the safety and well-being of everyone who works at Tesla’s facilities, whether they are a contractor or Tesla employee. However, this trial was focused solely on the amount of damages due, and was not related to Tesla’s safety practices.”
So, it seems that Tesla gets somewhat of a pass here. Depending on your stance, you either agree with Tesla or you feel a bit outraged. Some may argue that the workers were not Tesla’s employees, they potentially misused Tesla’s property, and they knowingly violated established safety protocols—or the staffing firms neglected to conduct proper safety training.
Staffing company owners may not believe that Tesla deserves this defense, and a certain amount of indignation would be understandable; after all, Tesla was engaging temporary labor to save overhead costs, and now the company has avoided paying the lion’s share of the worker’s compensation claim. These individuals might view the situation in a very different light: Tesla regardless of its direct or indirect relationship with the contractors, did not have appropriate safety measures in place, permitted contractors access to property it shouldn’t have, did not maintain or allow sufficient supervision of the people in its facility, or failed to provide comprehensive training to the staffing firm or the contractors during onboarding. Admittedly, the vehicle in question was a special European design, not the standard U.S. model.
However, based on the decision rendered by the court, it would appear that the deficits in training and injury prevention were attributed to the staffing provider. So the question moving forward for suppliers and MSPs in industrial environments comes down to clearly understanding the rules of joint responsibility under OSHA.
Joint Responsibility Under OSHA
In the eyes of safety regulators, the nature of the employment relationship plays no exclusive role in determining accountability. OSHA therefore enforces joint responsibility for staffing agencies and host employers (clients), with both parties liable for upholding OSHA safety tenets, including training, hazard communication, and the fulfillment of recordkeeping requirements.
When incidents are reported, OSHA concentrates on the “specific facts of each case,” not on which entity is the W2 employer of record for the worker. OSHA can hold both the staffing supplier and the client responsible for violations, which may include lack of adequate training regarding workplace hazards: “OSHA has concerns that some employers may use temporary workers as a way to avoid meeting all their compliance obligations under the OSH Act and other worker protection laws.”
OSHA cites a few of the reasons and historical concerns that informed its rationale for the joint responsibility law.
- Although temporary workers get placed in a variety of jobs, they’re frequently exposed to the most hazardous jobs.
- Contingent workers can be more vulnerable to workplace safety risks, health hazards, and retaliation than a client’s traditional full-time staff.
- Temporary workers too often receive inadequate safety training or explanations of their duties by either the temporary staffing agency or the host employer.
Making Joint Responsibility an Opportunity for Collaboration
It’s no secret that communication is key in staffing relationships. There are many moving parts and stakeholders to engage: client hiring managers, MSP program directors, staffing suppliers, and the workers themselves. Effectively navigating the rules of joint responsibility, while mitigating the inherent risks, requires close collaboration.
Before launching the program, staffing providers, MSPs, and clients should hash out all of the respective duties, environmental threats, compliance responsibilities, training needs, and standard operating procedures. These discovery sessions present a perfect chance for all parties to examine the prospective hazards to which workers could be exposed, and then develop strategies for preventing, reporting, and correcting them.
This information, OSHA recommends, should be set out clearly in the services agreements between the MSP, staffing firms, and end client. “Including such terms in a contract will ensure that each employer complies with all relevant regulatory requirements, thereby avoiding confusion as to the employer's obligations,” OSHA suggests.
Best Practices in Risk Prevention
To avoid your own Tesla situation, here are some best practices that can apply to MSPs and staffing suppliers undertaking risky programs.
- While staffing agencies often provide general safety and health training, clients should participate in developing specific training tailored to their particular workplace equipment and hazards. In a managed workforce arrangement, MSPs have proven to be crucial and effective bridges between clients and suppliers in this kind of onboarding process.
- Robust communication between MSPs, staffing suppliers, and clients is paramount to ensuring that the necessary protections are provided— and who will be providing these resources (e.g., personal protective equipment, tools, etc.).
- Staffing agencies have a duty and a right to inquire about the conditions of their workers' assigned sites.
- Staffing suppliers, for their part, should be checking in regularly with the MSP or client to assess the ongoing security of the facilities.
- Clients have a responsibility to maintain salubrious working conditions and assure suppliers that contingent talent are being sent to safe workplaces. Whether directly or through the MSP, suppliers and clients should be sending and receiving regular reports about safety compliance, identified risks, injuries, and more.
- Staffing agencies and MSPs aren’t expected to be become experts on a client’s unique workplace hazards, but they should determine what conditions exist, what hazards may be encountered, and how best to protect their workers. Clients, meanwhile, should step up and make every effort to impart this information transparently to staffing firms and MSPs.
- The staffing agency and MSP should verify that the client has fulfilled its responsibilities for a safe workplace. The client’s response should be documented. This is particularly important if the client seems to be obstructing the evaluation or refuses to offer forthcoming details.
- And as OSHA stresses, “Host employers (clients) must treat temporary workers like any other workers in terms of training and safety and health protections.”
Accidents happen. We all know that. But many times, they can be averted. The incident at Tesla stands as a poignant object lesson, with far-reaching repercussions to the staffing agency and workers involved. Under law, as OSHA warns, “ignorance of hazards is not an excuse.” And that’s why a dedicated commitment to communication and compliance planning, reporting, and collaboration remains essential—even when we’d rather be talking about Fitbits, tech fads, and “the next big thing.” Because at the end of the day, the wellbeing of our workforce is the biggest thing.