OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
March 26, 1996
Mr. Richard Lewis
American Pulpwood Association, Inc.
600 Jefferson Plaza
Rockville, Maryland 20852
Dear Mr. Lewis:
Thank you for your letter of June 14, 1995, requesting that the Occupational Safety and Health Administration (OSHA) set forth the tests it uses to determine whether an employment relationship exists between a landowner and the loggers it contracts with for cut and haul services. We regret that due to an increasing number of requests for letters of interpretation or clarification, we were unable to respond to your inquiry in a shorter time frame.
OSHA is frequently presented with the issue of who (or what) fits within the definition of "employer," for purposes of determining coverage under the Occupational Safety and Health Act ("OSH Act" or "the Act"). For example, we have dealt with the issue in cases involving taxi drivers, sea urchin divers, migrant workers and loggers. The issue of status as an employer is a significant threshold issue for OSHA enforcement purposes, since in the absence of such a finding, OSH Act coverage does not attach. Since independent contractors are not normally considered as employees of the contracting agent, businesses that hire only independent contractors are not employers under the OSH Act. Accordingly, such business entities are excluded from coverage, and the independent contractors working for them are not entitled to the Act's protections.
Whether a particular entity in a specific circumstance is considered an employer is, to a large extent, a legal question. The OSH Act defines employers and employees in terms of each other: an employer is one who is engaged in a business affecting commerce who has employees, and an employee is a person employed by an employer. 29 U.S.C. section 652(5) and (6). Clearly, the statutory definitions give little guidance in determining whether there is an employment relationship in any particular case. Fortunately, however, the courts (including the Supreme Court), and the Occupational Safety and Health Review Commission have developed detailed legal tests for determining whether a worker is an employee or an independent contractor. In making the threshold determination of whether OSHA jurisdiction attaches, we apply the criteria set forth in these tests.
With respect to the logging industry, it has been OSHA's experience that this industry is characterized by a great variation in the nature of the interrelationships between owners, foresters, supervisors and cutters. At one end of the spectrum is the small landowner who contracts with a professional logging company to log the one wooded tract that is on his land. At the other end is the many-thousand acre landowner that is an integrated logging/wood products operation using foresters, supervisors and cutters for on-going logging activities. The threshold determination of coverage in each case must turn on its own facts.
In deciding whether to bring an enforcement action against a logging industry employer, we first have to determine if the workers exposed to hazards are "employees." If they are, the next inquiry is which entity or group of entities constitutes their "employer." Control over the work and the workers is the focal point of the tests used to determine the existence of an employment relationship; control over the logging process and the workers in that process are the markers for determining employer/employee status.
The logging industry includes many different working relationships. Consequently, the decision regarding whether landowners are indeed employers must be made on a case-by-case basis, depending on the specific circumstances of each. Some of the criteria OSHA uses to determine the nature of employer/employee relationships in the logging industry include decisions regarding what, where, and how much to cut, control over the mechanisms of production, supervision, number of customers, and arrangements for compensation. For instance the more authority a particular entity retains over day-to-day decisions regarding the type and location, quantity and rate of cutting of wood, when coupled with other indicia of operational control, the more likely it is that the entity will be found to be an employer. Likewise, with respect to control over the mechanisms of production, the more control an entity exerts over day-to-day decisions concerning the type and quantity of equipment, amount of personnel to be used, and responsibility for obtaining financing for the lease or purchase of equipment, the more likely that entity will be found to be an employer. Similarly, an entity that retains authority to track, supervise, or otherwise be involved with issues of productivity, hiring or firing of particular workers, is likely to be found to be an employer, since an entity which contracts with an independent contractor would not retain authority over such matters. Finally, workers who routinely provide services for only one entity, and who always return to work for that one entity and it alone, and whose compensation is dependent on cutting as much wood as possible in a given amount of time rather than on the exercise of business judgment, may be considered employees of that entity, rather than employees of another, or independent contractors. The logging industry includes many different working relationships.
OSHA applies the traditional tests for determining which entities are employers and whether an employment relationship exists between the workers and those entities. Substance, not form, is what is determinative; since control of the employee's work is the hallmark of an employment relationship, it becomes the focal point of our analysis.
I am confident that by maintaining open lines of communication and working cooperatively we can successfully resolve these difficult issues and concentrate on identifying and correcting the many serious hazards that loggers are exposed to in the course of their work.
We appreciate your interest in employee safety and health. If you have any further questions regarding this matter, please contact John B. Miles, Jr., Director of Compliance Programs, at 202-219-9308.
Joseph A. Dear