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National COSH op-ed in Mercury News: seeking rights for temp workers

Milpitas temps ask: Who’s their real boss
By Mary Vogel
Special to the Mercury News
July 15, 2014

Who’s your boss?

For an increasing number of American workers, it’s a hard question to answer. To cut costs and avoid liability, more companies are hiring workers on a temporary or contract basis. More than 17 million people, 12 percent of the U.S. workforce, are now employed as temps, contract or freelance workers.

If you’re a temp, which company is responsible for your pay, your schedule — and your right to a safe workplace? The agency that hired you, or the company that hired the agency?

The right answer, according to a group of temporary workers at a recycling plant in Milpitas, is both. They get paid by one company — Leadpoint Business Services — but work under the direction of a different one — Browning Ferris Industries (BFI), which operates the facility.

When temps at Milpitas filed a union organizing petition last year, they asked the National Labor Relations Board to recognize both Leadpoint and BFI as joint employers. Seeking representation by the Teamsters, the workers argued that since two companies share control over the work environment, both should come to the bargaining table.

The regional office of the NLRB disagreed, finding Leadpoint alone was the employer. The temporary workers have appealed. My organization — the National Council for Occupational Safety and Health — recently joined an amicus brief in support of their claim that both companies are joint employers.

Determining who has legal responsibility as an employer makes a big difference when it comes to safety on the job. Too many companies use blurred lines of authority to duck responsibility when something goes wrong. A few examples:

  • “We don’t train temps”: That was the answer given to U.S. Occupational Safety and Health Administration inspector after Simon Martinez ,a 39-year old contract employee, was crushed to death by three 800-pound bales of cardboard at a Sonoco Recycling plant in Raleigh, N.C. It was the second death at the facility in less than two months.
  • “Not responsible”: 24-year old Travis Kidd, a temp at a company called Workforce Staffing, was killed in 2011 when he was run over by a trash compactor at a Cleveland County, N.C. landfill. “Landfill management,” OSHA reported, “felt they were not responsible to require or provide Mr. Kidd with the same PPE [personal protective equipment] because they considered him a temporary employee and not their employee.”
  • A temp’s temperature: 106.9 degrees: On May 29, 2012 Mark Jefferson, a former high school basketball star, went looking for work at Labor Ready in Trenton, N.J. He was assigned to a truck operated by Waste Management. After a nine-hour shift in 90 degree heat, he collapsed and never recovered; his internal temperature was recorded at 106.9 degrees. During his one and only day on the job, Jefferson never received training on using rest, shade and water to avoid the hazards of extreme heat.

Temp workers are frequently assigned dirty, hazardous jobs that no one else wants. A recent investigation by ProPublica found they sustain much higher rates of workplace injuries and illness than full-time employees.

Leadpoint Business Services employs 120 workers at BFI in Milpitas. It’s a relatively small number of people, but they’re standing up for a large cause. Millions of U.S. temporary and contract workers should not be treated as second class citizens. Bringing all employers to the bargaining table — instead of letting them point fingers at one another — is an important part of the solution.

Mary Vogel, an attorney, is executive director of the National Council for Occupational Safety and Health. She wrote this for this newspaper.

[This article originally appeared in the San Jose Mercury News.]