CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
A NIOSH Commentary reviews the current research and paints a troubling picture for nonstandard workers
It is no secret that more and more work is being performed by American workers outside of the traditional employer-employee relationship. Employers are increasingly turning to nonstandard work relationships, whether in the form of independent contractors, workers provided by temp or staff servicing agencies, part-time workers, or "gig" workers who provide services through online digital intermediaries, in order to cut costs associated with full-time employees and provide more staffing flexibility. After all, by utilizing these types of workers, employers can avoid paying for costly employee benefits such as health insurance, paid vacation time, and pensions, and unemployment and workers' compensation insurance can often be eliminated or passed on to others. In addition to these obvious negative impacts on workers, however, there may be other less obvious negative impacts.
In "Nonstandard Work Arrangements and Worker Health and Safety," John Howard, M.D., J.D., of the National Institute of Occupational Safety and Health, looks at recent research and argues that nontraditional workers, that is, those not in traditional employer-employee relationships, may actually be susceptible to, and actually suffering, more work related injuries and illnesses than their "employed" counterparts. If true, this problem could also be exacerbated by the lack of certain benefits that are designed to protect injured workers.
THE NONSTANDARD WORK POPULATION
As noted by Dr. Howard, the precise size of the nonstandard work population in the U.S. is hard to determine, in part because of the lack of a consistently applied definition, but current estimates range anywhere from about 8% to about 18%. For example, the Government Accounting Office estimated in 2015 that "a core group of contingent workers, such as agency temps and on-call workers, comprised about 7.9 percent of the employed labor force in 2010." However, a 2013 study by NIOSH concluded that 18.7% of adults were working in nonstandard arrangements. A 2015 RAND-Princeton report suggested that the 2015 total was about 15.8%. These studies seem to agree that most of these workers are independent contractors or working through temp or staffing agencies, with more recent arrangements such as "gig" workers providing services through digital service providers like Uber making up less than one percent.
HEALTH AND SAFETY DISPARITIES
One of the most obvious disparities between the treatment of standard and nonstandard workers is the lack of statutory labor protections for independent contractors, who, for example, are not covered under a hirer’s worker compensation policy. Moreover, the independent contractor, rather than the hirer, is generally responsible for overseeing his or her own workplace safety. “Gig” workers are often classified as independent contractors, with the firms claiming that they merely provide “an online platform, allowing independent contractors and consumers to find each other,” but the result of this arrangement, which is coming under fire in the courts, is that the workers take their workplace safety into their own hands. As with all independent contractors, the lack of workers’ compensation can lead to financial hardship or ruin if an injury occurs.
In one of the more common alternative work arrangements, that of temp or staffing agencies that provide workers to client employers, the staffing agency generally takes responsibility for wages and insurance coverage. However, with the staffing agency often taking on these basic employer responsibilities, the client companies may fail to take those steps necessary to protect the health and welfare of these workers on the job site. As noted by Dr. Howard, client employers may not be providing temporary workers with the same safety training or equipment that they provide to regular employees, perhaps thinking incorrectly that no legal responsibility for doing so exists. This basic shortcoming is rife with the potential for work-related health issues for the leased worker, which could in turn lead to more injuries for even standard employees who may be present when accidents occur.
Statistics seem to support the conclusion that the potential for work-related injury in these situations is resulting in more actual injuries. Dr. Howard points to studies from the 1990s that found more injuries for nonstandard workers providing services in nursing fields, in the petrochemical industries, and in plastics manufacturing. More recent studies from the 2000s, although not broken down by fields, apparently support the trend, with at least one study showing that nonstandard workers had about twice the rate of work-related injuries than standard workers. He also notes one Washington state study from 2010 that found twice as many workers' compensation claims for agency workers than for regular employees. One study also found that workers who transitioned from a nonstandard work arrangement to a standard employment relationship "experienced a lower mortality rate" than their counterparts who continued as temporary workers.
Although the reasons for these disparities are not definitively known, Dr. Howard points to research suggesting that nonstandard workers are often given more hazardous work assignments and are reluctant to object, given the tenuous nature of their employment. Moreover, as noted above, these workers might not be receiving the same safety training and equipment as regular employees, with employers who are not directly paying for workers' compensation either lacking the proper incentive for doing so or believing that the safety of these employees is not their responsibility. In addition, nonstandard workers might lack the personal or social connections to standard employees, who might, if approached, be able and willing to provide insight and assistance that could prevent workplace injuries.
Illness rates were also greater for nonstandard workers than for regular employees. Dr. Howard notes that the lack of paid sick leave for these workers probably results in more workers working while sick, which in turn could result in a greater incidence of job-site injuries, as at least one study found that workers with paid sick leave were 28% less likely to sustain a work-related injury than workers without such leave.
Beyond these specific and direct worksite safety issues, many studies have looked at the adverse psychological impact that generally accompanies work arrangements that lack long-term stability. Addressing the psychological impact of negative employment status generally, albeit not specifically nonstandard work arrangements, Dr. Howard notes that "Studies as early as the 1990s showed that poor mental health outcomes in workers could result from (i) major organizational changes; (ii) downsizing; or (iii) sudden unemployment" [citations omitted].
These are certainly troubling statistics and given that, as Dr. Howard states, "the global economic pressures that promote the growth of nonstandard work arrangements may only increase," it seems prudent that occupational health and safety resources be directed toward finding solutions to help level the playing field. At least when the work is being performed at the same site as that at which regular employees are also working, it would seem that better communication as to the safety responsibilities of the client employers would be a clear first step in order to ensure that nonstandard workers are provided the same training and equipment as standard workers. In fact, OSHA-NIOSH jointly recommend that joint risk assessments be performed by the staffing agency and client company when workers are placed with the client company, and that client companies provide as a matter of course the same on-site safety training to leased workers that they do to full-time employees. Another possible way to improve the health and safety results for these workers would be to push for paid sick leave for agency workers. More research might be needed to properly understand the scope of the problem and how to address it, but these could serve as first steps.
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