The federal government could easily track injuries suffered by temporary workers by adding a checkbox to a government form that already exists. Such a move would give regulators the data needed to justify stronger protections.
But such a seemingly simple change could take more than a decade to wind its way through the politics and bureaucracy of Washington in the face of sustained opposition from industries, which benefit from temp labor.
Last week, ProPublica documented the dangers faced by temp agency workers. Temp work is one of the fastest growing segments of the economy, yet it is also one of the few where the injury rate has been increasing.
Many companies now employ what amounts to a permanent temporary workforce, ordering workers on a daily basis just as they would office supplies or machine parts. The companies save on costs like insurance, workers' comp and unemployment taxes while gaining the flexibility to bring on and dismiss employees at a moment's notice.
There are many things that can be done to protect this vulnerable workforce, health and safety experts told ProPublica, from better recordkeeping to more targeted Occupational Safety and Health Administration inspections to reforming the way insurance companies write workers' compensation policies. But as the example of the checkbox illustrates, even straightforward proposals face opposition.
ProPublica's analysis of workers' comp claims found that in five states, representing more than a fifth of the U.S. population, temps face a significantly greater risk of getting injured on the job than permanent employees. Temp workers have been repeatedly pulled into machines, stricken by heat exhaustion and asphyxiated by chemicals, sometimes on their first day on the job. In Florida, temps in blue-collar workplaces were about six times as likely to be injured as permanent employees doing similar jobs.
ProPublica studied workers' comp records compiled by states because the federal government has no national data on temp worker injuries. That's because the Labor Department's main survey tracking injuries doesn't distinguish between temp workers and regular workers. Adding the checkbox to logs most companies already keep would solve this problem, making it possible to know whether any injured worker was temp or full-time. But officials said any change to the form would face monumental hurdles.
"To add a box to an OSHA log is a large regulatory endeavor," OSHA director David Michaels said in an interview. "It's very controversial for us to add boxes," he added. "No OSHA regulation takes less than a couple of years."
The last time OSHA changed the logs was in 2001. A proposal to add a column for employers to track musculoskeletal disorders met stiff resistance from the business community, which said it would create an unnecessary paperwork burden and a distorted picture of workplace safety. The rule went through various versions through the 2000s before Congress added a rider to the 2012 appropriations bill preventing any funds from being used to work on it.
Earlier this year, OSHA launched an initiative to raise awareness about temp worker safety and the employers' responsibilities. Michaels has directed inspectors to ask all companies they investigate whether they employ temp workers and to ensure they're included in the training. Those cases will also be flagged as involving temps so OSHA can better track them.
"I think there is a lot of education to be done. I think there is still a lot of enforcement to be done by OSHA," said Stephen Dwyer, general counsel for the temp industry's trade group, the American Staffing Association. "If they are getting killed and they are getting injured, it's not only a tragedy, it's crippling for our industry."
Dwyer said he thinks the association would support an added checkbox to count temp worker injuries. There are a still a lot of companies that think hiring a temp agency to provide labor absolves them of responsibility for those workers, he said. Temp firms need to inspect worksites and check in with the companies and temp workers, he added, not only at the beginning of an assignment but during it as well, to make sure they're not put in dangerous situations.
Worker advocates and public health groups say there's a lot more that OSHA and Congress could be doing to prevent temp worker injuries and fatalities.
In November, the National Staffing Workers Alliance and the National Council for Occupational Safety and Health published a list of 15 recommendations. One idea was for OSHA to target high-hazard industries like warehousing and recycling that use a lot of temp workers and to identify the biggest temp agencies in those sectors to look for repeat offenders having problems at multiple worksites. Another proposal would have OSHA fine temp agencies for any violations they find at a company to which it has sent workers.
In several high-profile cases ProPublica featured – a worker crushed by a machine at a Bacardi bottling plant, a worker pulled into a hummus grinder at Tribe Mediterranean Foods, a worker asphyxiated by hydrogen sulfide exposure at a Resolute Forest Products paper mill – the temp agency wasn't cited by OSHA for any violations.
"The temp agency needs to be held accountable," said Marcy Goldstein-Gelb, director of the Massachusetts Coalition for Occupational Safety and Health.
Goldstein-Gelb helped get a Temporary Workers Right-to-Know Law passed in Massachusetts that requires temp agencies to give workers written notice of the basics: whom they will work for, how much they'll be paid and what safety equipment they'll need. Other states should adopt right-to-know laws as well, she said.
"There needs to be a look at: Why is there such a huge growth in temp work? Is there something employers are trying to avoid? Is there a problem in our economic system that causes employers to use large numbers of temp workers for a long period time?" she said.
One of the biggest reasons companies use temp workers is to reduce workers' comp costs. When a company contracts a temp firm, the agency picks up those costs for the workers it assigns even though it has little or no control over job sites. Some public health and workers' comp experts say that reduces the financial incentive for companies to protect workers. If a temp gets injured, the host company doesn't pay the medical bills or increased premiums – the temp agency does.
Dwyer of the staffing association disagreed, noting that current system pressures temp agencies that pay the workers' comp premiums to focus on safety. Rising premiums, a consequence of repeated injuries, could put a temp agency out of business. A larger company could easily absorb such costs.
One solution would be for workers' comp insurance companies and regulators to follow a model they've created for another human resources outsourcing industry, known as professional employer organizations. So-called PEOs, which became popular in the late 1990s, assume an employer's responsibilities for tax and insurance purposes and then lease the employees back to the company that supervises them. The idea is that smaller companies pay less for workers' comp and benefits like health care by pooling their risk with other companies.
Worried that companies were using this tactic to mask their poor safety records, some states and insurance companies began writing workers' comp policies in the name of both the PEO and their client company. In this way, the company's injury record is still accounted for in determining its workers' comp premiums.
Although most temp assignments are short, many agencies work on long-term contracts providing dozens of employees, some of whom work for the same company as a temp for years.
Another advocacy group, the Center for Progressive Reform, issued a broader set of proposals early this year to protect several forms of "contingent" workers, including temp workers, independent construction contractors and subcontracted hotel housekeepers. It included:
- Adding an amendment to the Occupational Safety and Health Act that would give workers the right to sue employers who flagrantly violate the law. Such a right exists under environmental laws to force polluters to clean up, the group said.
- Having OSHA conduct sweeps of temp agencies and their client companies to ensure the worksites are safe.
- Increasing fines for companies that fail to train temp workers or for temp agencies that routinely send workers out to companies that don't train them.
Although no action has been taken by Congress, the growing concern over temp workers has reached the highest levels of the government's health and safety agencies.
In a roundup of holiday wishes for workers on Dec. 19, John Howard, the director of the National Institute for Occupational Safety and Health, wrote that his wish was: "That there should be no distinction in employment settings between ‘temporary' and ‘permanent' workers in how well all workers are protected from workplace hazards."