Storm & Security

20 STORM & SECURITY PROTECTION / PEOPLE IN THE KNOW 2015 pregnancy), national origin, age (40 or older), disability or genetic information." For example, an employer's reliance on word-of-mouth recruitment by its mostly Hispanic work force may violate the law if the result is that almost all new hires are Hispanic. The violation could result in a charge that a corporation would have to expend time and energy defending. Ignorance Is Not a Valid Defense On April 29, 2013, the Occupational Safety and Health Administration (OSHA) launched the Temporary Worker Initiative. OSHA issued a memorandum that host employers need to treat temporary workers as they treat existing employees. Temporary staffing agencies and host employers share control over the employee and therefore are jointly responsible for the temp employee's safety and health. If a temporary employee is on your worksite and is injured, who is responsible? It is essential that both employers comply with all relevant OSHA require- ments. In practice, the onsite employer receives the OSHA citation regardless of the training or lack of training provided by the staffing organization. Under a new definition of employee, are temp employees considered common-law employees? If they worked on that jobsite longer than 90 days were they offered health insurance? Are they eligible for a company pension after one year of "temporary employment?" The consequence of clearly understanding who is your employee cannot be understated. Even a small employer's workers compensation rates and unemploy- ment benefit payments can be affected by an intended common law employee. How would the firing of a contingent employee deemed by the government, through a lawsuit, to be an employee effect the unemployment compensation record or a workers' compensation premium increase from an unrealized injured employee? What about the penalty for late reporting because you did not understand that the injured worker was your common law employee? Could the claim be denied for late reporting? Employers with more than 50 employees have the same issues as smaller employers while attempting to understand the liability for failing to anticipate when an employee becomes eligible for protection under myriad federal labor laws that apply to large employers, with each law having its own definition of who is your employee. The biggest concern for employers that are close to 50 employees but are not quite there happens when a contingent employee is ruled to be a common law employee and then every employee now is eligible for any employee rights granted employees of companies that employ 50 or more employees, or the company is forced to comply with the Affordable Healthcare Act and the penalties associated with noncompliance. The definitions of who is an employee and the number of fines associated with failure to comply with a federal labor law will have negative economic consequences on many businesses. Purchasing a comprehensive Employment Practices Liability Policy and staying informed on the shifting employee landscape will help keep business entities profitable while the definitions continue to be refined. A word of warning; Although lack of knowledge is a mitigating factor to reduce a penalty imposed under a legal statute, ignorance of the law is not a valid defense. In 2016, the new corporate question will be, "Who is our employee?" Don Leggett Jr., AAI, is a nationally accredited advisor on insurance. He is Managing Partner of Advanced Risk Management. Inc., an insurance consulting firm based in Tampa FL. PROTECT / YOURSELF c o n t i n u e d 3401 W. Navy Boulevard, Pensacola, FL 32505 8 5 0 - 4 3 2 - 2 4 8 5 Design, Manufacturing and Distribution of a Complete Line of Hurricane Shutters, Louvered Systems and Storm & Security Screen Products

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