Temporary Workers & OSHA – Who Takes the Lead?

The Occupational Safety and Health Act of 1970 (the “OSH Act”) is the primary federal law that governs occupational health and safety in the private sector and federal government.  The OSH Act is administered by the Occupational Safety and Health Administration (“OSHA”) and covers most private sector employers and their employees. When a temporary worker is placed with an end client (referred to as the “host employer” by OSHA) the staffing agency and host employer are jointly responsible for maintaining a safe work environment.  But, how are these joint responsibilities divvied up given the fact that the temporary worker will likely be rendering services outside the staffing agency’s premises? According to OSHA, the staffing agency and host employer must “work together” to ensure that the OSH Act’s requirements are fully met.  Working together includes determining which of the joint employers may be better suited to ensure compliance with a particular requirement, and who will assume primary responsibility for it.  Obviously, in the fast paced staffing industry this is not the easiest task in the world, particularly when the staffing / host employer relationship is new, … Continue reading

So I Signed a Non-Compete. What, Me Worry?

I’m amazed at how many times an ex-employee acknowledges that they have executed a restrictive covenant agreement (a non-compete or non-solicitation agreement), then utters that it’s meaningless due to unenforceability.  This Alfred E. Neuman / “What, Me Worry” approach often leads to problems for both the sophomoric ex-employee, as well as the former employer. The enforceability of restrictive covenants is governed by applicable state law, which will customarily be the state in which the employee worked or the state whose law was contractually agreed to govern.  Other than the few jurisdictions (such as California) in which specified restrictive covenants are unenforceable as a matter of public policy, as a general rule restrictive covenants are enforceable to the extent that they are reasonable necessary to protect a legitimate business interest.  This determination is fact specific and, again, determined under the particular governing state law.  All facts are different; all state laws vary – meaning that each case has to be evaluated on its own.