Who is Responsible for Independent Contractor Safety?
You've probably heard somewhere that OSHA doesn't apply to self-employed independent contractors. Before you get too excited, you need to understand that this is more of a complicated legal area than a blank check to ignore what that 1099 employee is doing. There are two misunderstandings at work here: who this exemption applies to and what this exemption means.
Who Qualifies as an Independent Contractor?Getting a 1099 might mean tax season's harder, but it doesn't make you an independent contractor…per se. The Department of Labor (DOL) has started looking at the misclassification of employees as independent contractors for all sorts of reasons. For instance, you can't just call someone an independent contractor (poof, employee no more). Or…you can, until regulators or lawyers come calling. The standards for defining an employer-employee relationship are complicated. There are multiple tests to determine the answer, and which one's appropriate depends on the type of law we're talking about—tax law versus workers' rights, for example.
Independent Contractors and OSHAOSHA literature doesn't typically use the term "independent contractor." It uses "self-employed." There's a pretty simple reason self-employed are exempted from OSHA. OSHA exists to protect workers from unsafe or "unhealthful" conditions that their employer might force them into using economic leverage. If you work for yourself, that's not a problem. But the trend of misclassifying employees as contractors makes it a problem. To fulfill their mandate, OSHA has to decide who's self-employed in reality, and who's not. For them, the important question is: who makes the decisions determining that person's safety? OSHA can and does consider many different factors when judging worker status. However, the most critical item is work process. When you hire a true independent contractor, you request a specific outcome. You can specify what end result is acceptable and what's not. But the contractor applies expertise and their judgment to arrive at the end result. You don't get to dictate their process. If you dictate someone's process, you control their safety. Therefore, OSHA protects them.
Who is NOT Considered Self-Employed Under OSHA?Anyone hired through a third party is not exempt. That includes general contractors, subcontractors, staffing agencies, temp agencies, labor leasing agencies, and more. These may not be your employees, but you may be responsible for their safety under OSHA. Anyone who brings employees of their own to the job is not exempt. These are employers who share responsibility for safety in the workplace. OSHA views anyone whose work process you control as an employee with all the safety rights and protections of a W2 hire. When employers challenged this practice, the courts backed them up.
What Are Your Safety Responsibilities with Independent Contractors?Say you hire a truly independent contractor. They:
- Have no employees
- Control their work process
- Use skills and independent judgment
- Deliver an agreed-upon result without being told how
- Recording injuries or illnesses they sustain
- Providing safety training
- Purchasing or maintaining their personal protective equipment (PPE)