Mondaq Business Briefing
May 21, 2019
By James Curtis, Daniel R. Birnbaum, Patrick D. Joyce, Matthew A. Sloan, Adam R. Young and Craig B. Simonsen
Seyfarth Synopsis: The growth of the gig economy has transformed the modern workforce and upended traditional models for developing a workplace safety culture and worker safety training. New and inexperienced workers confront evolving safety hazards. Given this transformed environment, employers must address safety hazards proactively or face OSHA citations or other liability.
By 2018, 57 million American workers had joined a part of the gig economy, more than one third of the entire workforce. Gig economy workers range from traditional independent contractors to temporary workers who might work just a few hours a week. Some of these workers may use gig work as a supplement to a traditional job, while 29% had gig economy work arrangements as their primary source of income. Gig economy jobs offer informal employment arrangements, flexible work hours, desirable alternative work locations, and unique compensation structures. With employment opportunities for students and new workers, the gig economy workforce is disproportionately young. Given the lack of a formal employee/employer structure, gig economy jobs often lack traditional means of workplace training and supervision.
The rise in the gig economy has brought with it new, previously unknown occupational hazards. Labor groups, advocacy organizations, and state legislative bodies have concentrated their efforts to encourage gig companies to address safety risks in this changed environment. With little presence in the gig economy, traditional labor groups have expressed an interest in organizing gig workers. Government regulators are also scrambling to keep up with and adapt prior enforcement methods to the gig environment. Finally, aggressive plaintiff’s lawyers are finding new ways to hold gig companies liable for accidents and injuries to gig workers. Safety training, culture, practices, supervision, and enforcement must be adapted to meet the new economy.
Specific safety issues raised in the gig economy include:
- Many companies that exist in the gig economy operate in higher-risk industries. Gig businesses have transformed passenger transportation and freight delivery services, where workers utilize the public roads and highways. Transportation accidents in general comprise nearly half of all workplace fatalities.
- Many companies in the gig economy possess transient workforces that may not be experienced in the field or may be returning to the field after pursuing a different career. Absent proper new-hire and refresher safety training, these workers may lack the knowledge and skills necessary to perform their jobs adequately. Safety training may be necessary to ensure gig workers can do the job safely. Similarly, given their independent nature, these workers may need personal protective equipment or other traditional workplace protection designed to reduce workplace risk.
- Workers in the gig economy may not know who to contact to report safety concerns. It is also possible gig workers may choose not to report concerns at all. Unlike workers in a traditional workforce, who are taught to be the eyes and ears for their co-worker, the gig economy worker may not bring safety concerns to the company’s attention, which may result in unaddressed hazards. Gig companies may need to develop new methods for reporting safety concerns and injuries.
- The gig economy, characterized by flexibility and independence, has a tendency to attract younger workers. Younger workers often have less work history and less experience with occupational safety hazards. These workers can be at greater risk of exposure to safety hazards. Worse, young workers may have an unfounded sense of invincibility as it relates to workplace hazards. Absent an instilled safety culture, these workers may have a greater likelihood of sustaining an injury or illness.
Regulatory agencies have been slow to adapt to the gig economy. Interest groups like the National Council for Occupational Safety and Health have lobbied OSHA to enforce workplace safety issues in the gig economy under a “dual employer” theory. This would make the gig company responsible for safety compliance, even though the gig worker is not an employee of the gig company.
The gig economy also invokes safety concerns that impact the temporary workplace, and temporary workers have been an area of increasingly aggressive enforcement from OSHA. OSHA historically takes the position that staffing agencies and host employers are “jointly responsible” for maintaining a safe work environment for temporary workers, including training requirements. Since initiating its Temporary Worker Initiative, OSHA compliance officers give closer scrutiny to any onsite temporary workers to ensure that they are adequately protected. OSHA’s website explains employers’ responsibilities with regard to temporary workers and safety training.
OSHA has also expressed health and safety concerns related to young workers, including specific recommendations on young workers’ safety training, supervision, pressure to work quickly, and the ability of young workers to cope with stress. OSHA has identified food service and outdoor work as two industries that frequently employ younger workers and are prominent in the gig economy. As such, OSHA indicates it will continue to aggressively enforce its protection of younger workers.
The rise of the gig economy also intersects with the rise of OSHA’s aggressive use of the General Duty Clause to address workplace violence. Recent decisions, such as Integra Health Management, Inc., have highlighted workplace violence in the workforce. This is one of the most well-recognized and reported safety issues in the gig economy. Indeed, gig economy companies have focused on incident investigation and risk assessments to reduce workplace violence safety concerns.
Ultimately, companies looking to operate in the gig economy must understand the risks to their organizations and adopt procedures to meet these concerns. Gig companies should consult with counsel and safety professionals to learn how to address these hazards and mitigate risks and liabilities.
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