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Employer Responsibility for Gig Workers Evolves with Safety Concerns

If you pay for services from independent contractors, your legal obligations to those individuals are far more limited than those involving statutory employees. But the growing importance of so-called "gig" workers in today's labor force is changing the legal landscape for some businesses.

Evolving Marketplace

The term "gig workers" refers to people who an employer would contract with directly, through agencies, or using a professional employer organization. The growth of the gig economy is fueled by variable demand for manpower and new enabling technology for some categories of work. But employment attorneys warn that aggressive plaintiffs' lawyers are chipping away barriers to employer liability for gig workers in the areas of accidents and injuries.

Meanwhile, the Occupational Health and Safety Administration (OSHA) is also paying more attention to contract workers. On its website, OSHA has outlined employer duties to protect temporary workers. It states, "OSHA has concerns that some employers may use temporary workers as a way to avoid meeting all of their compliance obligations." Employers "should consider the hazards it is in a position to prevent and correct."

OSHA's website also asserts that "Host employers must treat temporary workers like any other workers in terms of training and safety and health protections."

Warning Shot

OSHA's policy statement is focused on employers' use of temp agencies in "joint employment" arrangements, rather than the standard gig worker/independent contractor relationship. But it appears that a warning shot has been shot across employers' collective bow.

A study recently published by the Journal of Occupational and Environmental Medicine notes "increased rates of fatal and non-fatal injuries" among "traditional contingent workers," and explores potential causes. Differences in training was a potential culprit.

As a result, one employment law firm warns that "safety, training, culture, practices, supervision and enforcement must be adapted to meet the new economy." Even without the threat of litigation, only the rare employer would be indifferent to potential hazards facing anybody performing work for them. Besides, accidents caused by independent contractors at your worksite can also hurt regular employees and your customers.

Naturally, hazards faced by gig workers vary according to the nature of the work they perform. "On-demand jobs are among the most dangerous in the country," asserts the worker legal advocacy group National Employment Law Project. This organization wants states to mandate workers compensation coverage for all "on-demand workers." It lists the three most common job categories — transportation, delivery and home services — as "among the most hazardous in the country."

Vulnerability to Injury

Outside of the transportation, delivery and home services sectors, attention generally focuses on gig workers who spend a lot of time on your company's premises, where they might be vulnerable to accidents or injuries. Worksite injuries don't always involve hazardous equipment or materials.

Experts calling attention to the safety issue point to the demographics of gig workers, particularly the fact that they tend to be young. "Younger age is a well-known independent risk factor for occupational injury," according to a recent study by the Journal of Occupational and Environmental Medicine.

In addition to their relative youth, gig workers often work for a relatively short time periods for one company or in one industry sector. That inexperience also can put them at greater risk for accidents.

Protecting Workers

Meanwhile, OSHA has recently focused on worksite risks for younger workers. It's identified the following steps to employers should take to protect full-time and temporary workers under age 30:

  • Ensure that young workers receive training to recognize hazards and are competent in safe work practices.
  • Implement a mentoring or buddy system.
  • Encourage young workers to ask questions about tasks or procedures that are unclear.
  • Explain to young workers what they need to do if they're hurt on the job.

In addition, OSHA has informed employers of their duties to try to protect workers from workplace violence. The agency highlighted a case in which a social services contractor was held responsible for ignoring safety concerns expressed by a worker who traveled outside the workplace to visit clients and, while conducting a visit, was killed by a client.

The worker was an employee of the contractor. However, the case highlights employers' obligations to provide for the safety of individuals who provide services in a gig-like environment.

Toeing a Fine Line

In attending to the safety needs of independent contractors, employers should avoid tipping the scales toward establishing an employer-employee relationship with individuals who it classifies as independent contractors.

The law in this evolving area of employment law involves subjective assessments, and the nature of gig work arrangements varies widely. So, the advice of an employment attorney could prove invaluable as you weigh your workplace safety maintenance obligations.