You can hear 8th Circuit Court oral arguments at:
http://8cc-www.ca8.uscourts.gov/OAaudio/2008/1/072191.asx
This is something that I deal with on a daily basis. I am head of safety & risk management for a very large staffing company. Every accident that we deal with is considered a multi-employer work site. Cal-OSHA specifically defines multi-employer (they call them dual-employer sites), the info can be found here:
http://www.dir.ca.gov/DOSHPol/P&PC-1D.HTM
Anyone who uses temps is in a multi-employer situation. Further rulings that affect this relationship is OSHA's decision to require OSHA 300 logs be the responsibility for, and kept at the site.
Construction sites compounds my situation. I had an accident on a high profile construction site that I handled personally. A general contractor chooses an electrical sub contractor. The electrical sub contractor utilized a staffing for some of their employees. The situation was further complicated because there was another sub contractor that was responsible for setting up the scaffolding that the employees were injured on.
To address the question posed to 8th Circuit Court as to the question of employer, I will look at it from the point of view of the PEO (Professional Employer Organization) industry. The EMPLOYER is defined legally 3 ways; by the DOL, IRS, and English Common law. Co-employment is then defined from the concept of "who is the employer."
The IRS developed a 20 question test based on Common Law to determine an employee. This covers 3 areas:
1.)Behavioral control: The right to direct or
control how the work is done.
2.)Financial control: The right to direct or
control how the business aspects of the
worker's activities are conducted.
3.)Relationship of the parties: How the
parties perceive their relationship.
Another area that I deal with is in respect to Work Comp Insurance. The definition of employee has also been applied to whether an "independent contractor" is really an employee. They usually claim that the are really an employee after they are injured, do not have WC, and try to collect WC for the company that they are working for. Independent contractors (at client sites) are a risk and concern for PEOs also.
States' law also support OSHA's concept of multi-employer work sites in their insurance regulations. Any state that allows contractors to do a "wrap-up" program is using the concept.The primary purpose of wrap-up is to ensure that there is coverage when an event occurs. Even by a sub contractors employee who could attempt to prove that he was actually an employee of the general contractor.
A wrap-up program is one where the interests of the project owner, general contractor, construction manager, architects, engineers, subcontractors and sub-subcontractors are combined (wrapped up) for insurance purposes. How the insurance will be handled is up to the project owner or general contractor who is spearheading the project.
These wrap-up programs can be sponsored by project owners or general contractors. When owners require and control them, they are commonly referred to as "owner-- controlled" insurance programs (OCIP), and "contractor-- controlled" (CLIP) when general contractors require and control them.
A good evaluation of wrap-up programs can be found here:
http://findarticles.com/p/articles/mi_qa3615/is_200204/ai_n9026589
I know that the concept of multi-employer is difficult to comprehend, but we have been dealing with it in the staffing industry (called co-employment) forever. Understanding this is one of the things that makes me so good at the job I do.
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