Hire the Best and Keep Them Safe: Don’t Let Bias Hiring and Failure to Follow OSHA Regulations Hit Your Bottom Line

Anti-bias training is a focus in workplaces right now, especially as workers return to the office. This is no different in the staffing industry. The Equal Employment and Opportunity Commission has filed 10 actions against staffing firms in the last fiscal year, specifically for situations where the staffing firm complied with client requests to provide only certain types of workers for jobs.1 Even though the client is making the request, the staffing firm can be held liable under the joint employer relationship, if it complied with the request. Staffing firms should expect to be on EEOC’s list of enforcement priorities going forward.

Implicit-bias is defined as having unconscious, prejudiced thoughts, or feelings about specific groups, meaning that the person may have no idea they’re doing it and does not necessarily intend any malice. Implicit-bias isn’t limited to gender, race, ethnicity or sexual-orientation, it can also manifest in assumptions about socioeconomic status, family structures, age, and physical appearance. These attributes may trigger implicit-bias in the hiring process by associating these attributes with certain behavior, education, or abilities. For example, a hiring manager may not put much stock in a degree from an historically, black college or university or a community college, despite an applicant having more than the required experience, older employees or Hispanic employees may be passed over as not being fit for the “company culture.” Some hiring managers may even hire someone because they agree with everything during an interview (no push-back) or share common interests/hobbies.

There is implicit bias in the workplace, too. It’s assumed that employees of Asian descent are better at math and may be only considered for teams or positions that reflect that, instead of focusing on their strengths. Women with large families, especially small children, may be passed over for a promotion to a management position because of the demands of child care. Other implicit-bias examples include culturally associating Latinos with parties and celebrations. This makes them ideal for planning office parties. It seems fitting to put African-American employees in charge of leading discussions on Black History month. A manager may be thinking that he/or she is only trying to help an employee succeed by lowering expectations for employees of color.

Recent studies have shown that implicit bias in staffing firms has led to temporary workers not being placed with clients based on attributes they may have that makes them less desirable. These biases can prevent the most qualified employees from being hired, and furthermore, cause good employees to leave what they consider to be a toxic environment. This inevitably leads to the departure of good employees and a less diverse workplace.

Staffing firms should consider incorporating anti-bias training in the workplace to not only make employees and managers aware of these implicit-biases, but give them tools to combat them. Staffing firms should also review their anti-discrimination polices and incorporate examples of implicit bias. This will help them identify when their hiring process is discriminating against certain employees, and flag any discriminating requests from clients.

On the OSHA Front

Changes in reporting and and regulatory enforcement are going forward at the Occupational Safety and Health Administration. OSHA has resurrected proposed rules from the Obama administration that were withdrawn from during the Trump Administration. According to the Federal Register, one such proposed regulation would require employers with 100 or more employees in high-hazard industries to report illness and injuries electronically. This includes the Form 300 and the Form 301. The employer will be required to include its name in the electronic report. OSHA has said it plans to make some aspects of the information public. This information will likely include staffing firms.

Construction firms are likely to get the hit the hardest by this requirement, so staffing firms should be prepared to submit those logs for any workers they place with construction clients. It’s also worth reviewing which party is responsible for reporting injuries and incidents on a job site. The comment period has closed, and no news yet on when a final rule will be published. For more information go to: https://www.osha.gov/laws-regs/federalregister/publicationdate/currentyear.

OSHA Posting and Whistle Blowing Requirements

It never hurts to remember that both staffing firms and clients are required by federal law to post a notice from the Occupational Safety and Health Administration in a visible location. The notice, in the form of a poster, outlines and informs all worker rights under the Occupational Health and Safety Act. It also provides information on how to contact OSHA regarding any violations.

The poster should be placed in a well trafficked area (usually a cafeteria or break room) and be unobstructed by photos or menus. In this world of electronic and social media, violations of this law can be made public with a photo and a post to a social media site. According to a recent article in Newsweek, this happened when an employee posted a photo of a rolled-up poster in the corner of an office on the social media site Reddit.2 It’s possible the notice may have expired, but according to OSHA it does not to be taken down for that reason. Staffing firms should have the latest notice from OSHA placed in a conspicuous location in the office, so they’re not fined.

This dovetails with OSHA’s whistle blower protections. Failure to meet posting requirements can draw a whistle blowing complaint, as can a violation of worker rights or health and safety protocols. Any attempt at retaliation against a whistle blower such as demotion, termination, assignment to an undesirable position, or creating a hostile working environment, can be construed as retaliatory action against an employee by the employer. Fines and subsequent lawsuits can be considerable and expensive. Staffing firms should have solid anti-retaliation programs that provide a process for confidentially reporting occupational health and safety violations. Executives and managers need to be taught and coached on how to appropriately respond and resolve health and safety and compliance concerns including any accusations of retaliation.

Because OSHA has announced it’s intention to scrutinize the staffing industry more closely, staffing firms would be wise to to shore up or add anti-bias training, posting requirements and anti-retaliation efforts. These safety and compliance steps will prevent your company from becoming front-page news.

1. Temporary Staffing Agencies Accused of Biased Hiring Grab EEOC’s Attention, J. Edward Moreno, Rebekah Mintzer, Laura D. Francis, Bloomberg Law, October 14, 2022.

2. Employee says OSHA Poster Was Tossed When Workers ‘Began Asking Questions’ Shirali Bartov, Newsweek, September 23, 2022.