497 P.3d 353
Wash.2021Background
- Two consolidated WISHA cases: Tradesmen International (worker at Dochnahl/JAS construction sites) and Laborworks Industrial Staffing (workers at Strategic Materials recycling plant); both staffing agencies placed temporary workers with host employers and were cited by the Department of Labor & Industries.
- Board of Industrial Insurance Appeals vacated the citations for both agencies; superior courts split (Laborworks citations reinstated; Tradesmen citations vacated); Court of Appeals vacated both; Supreme Court granted review and consolidated the cases.
- Tradesmen: contract placed site-direction and safety obligations on host (Dochnahl); Tradesmen performed initial site inspection at original site but was not notified of a relocation to the Palatine site where scaffold/fall hazards existed; Department cited Tradesmen for scaffold and fall-protection violations.
- Laborworks: contract required Strategic to supervise the site but Laborworks handled hiring/onboarding, some training, vaccine offers, and recordkeeping; Department found blood-borne pathogen exposure, gaps in hepatitis B vaccination/declination documentation, inadequate training, and deficient medical/training records; Laborworks was cited for those deficiencies.
- Key factual distinction: Tradesmen’s citations involved physical-site infrastructure hazards beyond agency control after an unnotified relocation; Laborworks’ citations involved pre-assignment and administrative duties (training, vaccination, recordkeeping) within the staffing agency’s control and where it had prior notice of sharps incidents.
- Supreme Court result: affirmed Court of Appeals as to Tradesmen (no WISHA liability) and reversed as to Laborworks (reinstating citations against Laborworks).
Issues
| Issue | Plaintiff's Argument (Department) | Defendant's Argument (Agency) | Held |
|---|---|---|---|
| Standard for WISHA joint-employer liability — which test governs? | Apply a control-focused economic realities test (with knowledge and permanence relevant) to hold staffing agencies liable when they have sufficient control or knowledge to abate hazards. | Rely on economic realities showing host control of workplace; staffing agencies lack on-site control so should not be liable. | Court adopts economic realities/control-focused approach (drawing on prior WA and OSHA authority), emphasizing control over workers and work environment; knowledge is relevant when paired with control. |
| Tradesmen — was Tradesmen a liable employer for scaffold/fall hazards at uninspected Palatine site? | Department: staffing agency should share responsibility; agency had duties to inspect and could have discovered hazards. | Tradesmen: host had sole responsibility for directing/supervising and site safety; Tradesmen lacked control of the Palatine site because it was not notified and did not inspect. | Held: Tradesmen not liable — Board’s findings that Tradesmen lacked control of worker, work methods, and the Palatine site were supported by substantial evidence; violations were infrastructure issues beyond Tradesmen’s control. |
| Laborworks — was Laborworks a liable employer for training, vaccination, PPE, and recordkeeping violations? | Department: these violations relate to pre-assignment/admin responsibilities that Laborworks controlled and had notice of sharps hazards; agency liable for failing to abate. | Laborworks: host exercised daily supervision and site control so agency should not be cited for on-site conditions. | Held: Laborworks liable — the cited violations concerned agency-controlled pre-assignment duties (training, hepatitis B vaccine availability/declination, recordkeeping) and Laborworks had notice of prior sharps incidents; citations reinstated. |
Key Cases Cited
- Potelco, Inc. v. Dep't of Labor & Indus., 191 Wn. App. 9 (Wash. Ct. App. 2015) (applied economic realities test to determine which joint employer should be cited under WISHA)
- Becerra Becerra v. Expert Janitorial, LLC, 181 Wn.2d 186 (Wash. 2014) (adopted an FLSA-style economic-reality analysis for joint-employer status under wage-and-hour law)
- Stute v. P.B.M.C., Inc., 114 Wn.2d 454 (Wash. 1990) (general contractors bear primary responsibility for site safety when they have supervisory authority over the workplace)
- Kamla v. Space Needle Corp., 147 Wn.2d 114 (Wash. 2002) (jobsite owners may have WISHA duty when they retain control over how work is performed)
- Afoa v. Port of Seattle, 176 Wn.2d 460 (Wash. 2013) (jobsite owners have WISHA duties if they control manner and instrumentalities of work)
- Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851 (Wash. 2012) (rejects converting multifactor economic-realities test into a sole right-to-control test)
- Erection Co. v. Dep't of Labor & Indus., 160 Wn. App. 194 (Wash. Ct. App. 2011) (WISHA statutes and rules interpreted liberally to achieve workplace safety objectives)
- Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (U.S. 1992) (Darden factors for common-law agency/right-to-control inquiry)