FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON OCTOBER 28, 2021 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON OCTOBER 28, 2021 ERIN L. LENNON SUPREME COURT CLERK IN THE SUPREME COURT OF THE STATE OF WASHINGTON DEPARTMENT OF LABOR AND ) INDUSTRIES OF THE STATE OF ) No. 99031-0 WASHINGTON, ) (consolidated with 99032-8) ) Petitioner, ) ) v. ) En Banc ) TRADESMEN INTERNATIONAL, LLC, ) ) Respondent. ) ) DEPARTMENT OF LABOR AND ) INDUSTRIES OF THE STATE OF ) WASHINGTON, ) ) Petitioner, ) ) v. ) ) LABORWORKS INDUSTRIAL ) STAFFING SPECIALISTS, INC., ) ) Respondent. ) ) Filed : October 28, 2021 JOHNSON, J.—These cases involve the liability of temporary worker staffing agencies for violations of the Washington Industrial Safety and Health Act No. 99031-0 (consol. with 99032-8) of 1973 (WISHA), ch. 49.17 RCW. Tradesmen International and Laborworks Industrial Staffing Specialists are staffing agencies that place temporary workers with host employers. Tradesmen staffed a worker at a Dochnahl Construction site. Laborworks staffed workers at a Strategic Materials recycling facility. The Department of Labor and Industries (Department) cited the staffing agencies for WISHA violations arising from the staffing operations. In both cases, the citations were vacated by the Board of Industrial Insurance Appeals (Board), finding that the staffing agencies were not liable employers under WISHA. The Department appealed the decisions to the superior court. As to Laborworks, the superior court reinstated the citations, and as to Tradesmen, the superior court affirmed the Board and vacated the citations. In both cases, the Court of Appeals determined that the staffing agencies were not liable employers under WISHA and vacated the citations. We granted review and consolidated the cases. 1 Dep’t of Labor & Indus. v. Tradesmen Int’l, LLC, 14 Wn. App. 2d 168, 470 P.3d 519 (2020), review granted, 196 Wn.2d 1036 (2021). We affirm the Court of Appeals as to Tradesmen and reverse as to Laborworks. 1 Two amici briefs were filed by the National Employment Law Project, Dr. David Michaels, and Dr. Michael Silverstein, and the Washington State Labor Council, AFL-CIO and the Washington State Building and Construction Trades Council, AFL-CIO. 2 No. 99031-0 (consol. with 99032-8) FACTS Tradesmen Citations Tradesmen contracted with Dochnahl Construction to provide temporary workers on an as-needed basis. Under the contract, Tradesmen had exclusive responsibility to pay wages and was obligated to provide compensation, including wages and benefits, taxes, unemployment insurance, and workers’ compensation insurance. Per the contractual agreement, the host employer, Dochnahl, was “solely responsible for directing, supervising and controlling Tradesmen employees as well as their work.” Tradesmen Admin. Record (No. 79634-8-I) (T- AR) at 754. The contract included a safety clause stating: Client [Dochnahl] agrees to provide Tradesmen workers a safe work environment that complies with all applicable Federal OSHA [Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651- 678] and/or equivalent state agency standards. Client agrees to provide Tradesmen workers any specific safety training and/or equipment required for their work assignment, exclusive …
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