Washington: Employee Staffing Firm Not Liable for Safety Violations Where Borrowing Employer Had Control

Applying what it said was the "economic realities test," a Washington appellate court found that a borrowing employer had exercised sufficient control over the borrowed employee that the employee staffing company supplying the worker should not be liable for safety violations at the borrowing employer's facilities. The Department of Labor & Industries had cited the staffing company with three serious and two general violations under the state's Industrial Safety and Health Act ("WISHA"). It later issued a Corrective Notice of Redetermination (CNR) affirming the violations. The Board vacated the CNR, however, finding that the staffing company was not an "employer" for purposes of WISHA. The Department appealed and the superior court reversed, prompting an appeal to the Court of Appeal. The appellate court sided with the Board's decision, finding that only one factor—who paid the workers’ wages—supported holding the staffing company liable as an employer for the citations. Four factors, including the two related to control, weighed to the contrary. Thus, the economic realities test dictated that the staffing company was not an employer with respect to the violations.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Department of Labor & Indus. v. Laborworks Indus. Staffing Specialists, Inc., 2020 Wash. App. LEXIS 2304(Aug. 17, 2020)

See generally Larson’s Workers’ Compensation Law, § 35.01.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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