by Phil La Duke
Whenever I try to talk to a construction worker about safety—usually after they have done something amazingly unsafe—I get the same response “I know all that; we had to take that OSHA course.” I know the OSHA course (and many of the courses required by other governments around the world—one has to when one is a global consultant) very well, and under no circumstances would I attempt to operate heavy equipment, work in a confined space, or any of the sundry jobs in construction, at least not without substantial additional training.
Years ago I was head of training for a billion dollar construction management firm and while we did a great deal of training for our direct employees we did nothing for our contractors. At that time law prohibited it, because it was considered a co-employment violation. Companies were hiring employees in the guise of contractors to avoid paying payroll taxes, providing benefits, and even paying a higher wage. The government stepped in and created a test as to whether someone was a contractor or an employee. I myself (not by that company but when I worked for a shady slimeball I affectionately refer to as “The Devil”) was forced under duress to say that I was a contractor, not an employee (I could sign a paper that says I am ambassador to Monaco but that doesn’t make it true) eventually, however the IRS caught up with us and the entire workforce was converted to employees which started a mass exodus which ultimately unravelled the firm. I won’t get into co-employment test except to say that whether or not you trained the individual was a determinate as to whether or not you were an employee. That particular point has been changed several decades ago and now when it comes to safety in the US (and many other countries) both the Employer of Record and the Host Company have a joint duty to protect workers. So if your contractor dies you are liable for it. No “ifs” “ands” or “buts”. This is a major problem for anyone who uses contractors or temporary workers. The Host Company (the company that hires the contracting firm) and the Employer of Record (the company who hired the actual worker) are often at cross purposes when it comes to safety training. Having worked at a Host Company I understand the mindset that when you hire a contractor you expect him or her to come to the job ready and able to perform the work and do so safely. Having been an Employer of Record who provided contractors to companies I understand that there are hard limits to what I can teach the worker about the safety issues they might encounter.
So in a perfect world, the contracting firm should train its staff (or better yet train and verify the competency of its staff) in the core duties of a trade and the Host Companies need to train
Contractors in the specific hazards that they are likely to encounter on their worksites. Unfortunately, we are still stuck in a vicious cycle where contracting companies assume that their workers are qualified and competent with no real evidence besides a card issued by a third party. There is a saying that when you ASSUME you make an Ass out of U and Me, but unfortunately when we ASSUME that someone is qualified and competent people die if we are wrong. Training doesn’t necessarily mean competency, years of experience doesn’t equal competency, and even a Union card doesn’t prove competency.
So what happens if we don’t verify the competency of contractors. Maybe nothing and maybe something horrific. Incompetent employees often convince themselves that they are competent because they themselves have not been hurt on the job.
So what’s the answer? 1) verify that they completed the training 2) follow up by demonstrating how you want the job done on your site, 3) provide coaching and course correct when necessary, and finally 4) enforce the safety rules.
Too often none of these are done and in many cases, supervisors at the Host Company look the other way either because they want the work to get done, or more frequently because they believe that if they intercede they will somehow become liable if the person ends up injuring either themselves or another. Still, other supervisors believe that they are not allowed to direct a contractor to work more safely. Not only should they be allowed, they should be required to do so, and if your lawyer tells you differently, maybe it’s time for a new lawyer who keeps up with the law.
Did you like this post? If so you will probably like my up-coming book which can be ordered here I Know My Shoes Are Untied. Mind Your Own Business or on Barnes & Nobel.com. Did you hate this post? Did it offend you deeply? Maybe you should organize a book burning (minimum of 150 books) but be sure you are only burning my book, I don’t want you to go to a used book store and buy a bunch of cheap books and stack mine on top.
The book is a compilation of blog posts, guest blogs, magazine article (from around the world) and new material. Much of it is hard to find unless you know where to look. A second and third book has already been green-lighted by the publisher (expect less reprints and more new material).