      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 DEPARTMENT OF LABOR AND
 INDUSTRIES OF THE STATE OF                  No. 79634-8-I
 WASHINGTON,
                                             DIVISION ONE
                           Appellant,

              v.                             PUBLISHED OPINION

 TRADESMEN INTERNATIONAL, LLC,

                           Respondent.


      CHUN, J. —Tradesmen International, LLC, a staffing company, assigned a

temporary worker to a Dochnahl Construction job site. One day, without notifying

Tradesmen, Dochnahl sent the temporary worker to a different job site, where the

Department of Labor and Industries discovered several violations of the

Washington Industrial Safety and Health Act (WISHA). The Department cited

Tradesmen with two serious violations.

      Tradesmen appealed. An industrial appeals judge (IAJ) determined that

Tradesmen was not an employer under WISHA for purposes of the citation. The

IAJ issued a proposed decision vacating the citation. The Board of Industrial

Insurance Appeals affirmed (3-0) the IAJ’s proposed decision. The superior

court affirmed the Board’s decision. The Department appeals, asserting that we

should hold Tradesmen liable under the “knew or clearly should have known”
No. 79634-8-I/2


standard from its Dual Employer Directive (Directive).1 We reject this argument,

apply the “economic realities test,” and affirm the superior court’s conclusion that

Tradesmen was not an employer liable for the violations.

                                  I. BACKGROUND

       Tradesmen, a staffing company, assigns temporary workers to other

employers. Most of the company’s business in Washington takes place in the

construction industry.

       Tradesmen provides safety training to their workers and provides, or helps

their workers acquire, necessary personal protective equipment such as hard

hats, safety glasses, and gloves. The company also ensures that job sites where

it sends workers are safe by conducting a “walkout.” During a walkout, a

Tradesmen field representative goes to the job site, checks for obvious safety

hazards, and discusses general safety topics with its employees.

       Tradesmen entered into a Client Service Agreement (CSA) with Dochnahl.

In the CSA, Tradesmen agreed to assign temporary workers as needed and to

be responsible for paying and determining the workers’ compensation.

       Dochnahl agreed to be “solely responsible for directing, supervising and

controlling Tradesmen employees as well as their work,” to “verify[] the accuracy

of the records of actual time worked by Tradesmen employees,” and “to provide

Tradesmen workers a safe work environment that complies with all applicable

Federal [Occupational Safety Hazard Act (OSHA)] and/or equivalent state

       1  Wash. Dep’t of Labor & Indus., Div. of Occupational Safety & Health (DOSH),
Directive 1.15, at 3 (Feb. 15, 2019), https://www.lni.wa.gov/dA/96edf1ea0f/DD115.pdf
[https://perma.cc/GA2K-QXNN].
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No. 79634-8-I/3


agency standards.” Dochnahl also agreed “to provide Tradesmen workers any

specific safety training and/or equipment required for their work assignment,

exclusive of boots, hard hats and safety glasses, . . . [and to] ensure Tradesmen

workers wear all required safety equipment, as well as inspect, maintain and

replace this equipment as needed.” Dochnahl, at its sole discretion, could

terminate a Tradesman worker from its employ. Only Tradesmen, however,

could fire a temporary worker from its staffing company.

       Under a protocol, if a client wanted to move a temporary worker to a job

site Tradesman had not yet inspected, the client was to notify the staffing

company. Though the protocol was not in the written agreements with clients,

Tradesmen established it through verbal agreement. Tradesmen said it was

“rare” for a client not to call it when moving a worker.

       In the spring of 2016, Dochnahl needed a temporary worker to perform

“[t]ypical labor” and clean up at a construction site on Federal Avenue in Seattle.

A Tradesmen field representative conducted a walkout and determined the site

“checked out okay.” Tradesmen assigned a temporary worker to the site.

       One day, Dochnahl sent Tradesmen’s temporary worker to a different job

site, which was on Palatine Avenue in Seattle. Despite the protocol, Dochnahl

moved the temporary worker without notifying Tradesmen. Tradesmen had not

conducted a walkout at that site.

       The Department inspected the Palatine Avenue site after receiving a tip

that it had improper trenching and unsafe scaffolding. The Department

discovered multiple WISHA violations and cited Dochnahl. The Department also

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cited Tradesmen with two serious violations for failing to ensure that (1) fall

protection systems were implemented, and (2) a qualified person designed a

wooden job-made scaffold.

       Tradesmen appealed the citation to an IAJ, who issued a proposed order

vacating the citation. The IAJ concluded that Tradesmen was not an employer

for purposes of the citation based on findings that Tradesmen did not control the

temporary worker or work environment.

       The Department then appealed to the Board. The Department asked the

Board to apply a standard from the Directive, as opposed to the economic

realities test. The Directive, which establishes inspection and enforcement

policies for situations involving two or more employers, states that the

Department should cite an employer for a violation of which it knew or clearly

should have known. Directive, at 5. The Board affirmed 3-0. It rejected the

Department’s argument under the Directive and concluded that Tradesmen was

not liable as an employer for any violations the Department discovered during its

inspection of the Palatine Avenue job site. The Board made several findings

regarding the control that both Tradesmen and Dochnahl had over the temporary

worker and the Palatine Avenue job site:
       2. Tradesmen International, LLC, (Tradesmen) leases workers to its
          clients pursuant to agreements between Tradesmen and the
          clients. Under the agreements the client is solely responsible to
          direct and supervise the workers provided by Tradesmen and
          their work; to provide the worker with safety training specific to
          the work being done; to provide a safe work environment that
          complies with all applicable state and Federal health and safety
          standards; and may terminate the worker for any reason but a
          discriminatory one.

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No. 79634-8-I/5


      3. Tradesmen inspects each worksite to which it is informed that its
         workers are dispatched to ensure compliance with applicable
         safety and health laws, and will direct that corrections to any
         safety and health problems it discovers be effected. If the client
         moves the worker to work at a site other than the one Tradesmen
         has been informed of, protocol requires the client to inform
         Tradesmen of the move in order to permit Tradesmen to inspect
         the new site and arrange for correction of any safety and health
         hazards.
      ...
      5. On April 26, 2016, Dochnahl transferred [the temporary worker]
         to a worksite located at 6521 N. Palatine, Seattle, Washington,
         without notifying Tradesmen of the change in [the temporary
         worker]'s worksite. [The temporary worker] did not inform
         Tradesmen of the change in worksites.
      ...
      8. On April 26, 2016, Tradesmen did not control [the temporary
         worker] or the work he was performing at 6521 N. Palatine,
         Seattle, Washington.
      9. On April 26, 2016, Tradesmen did not control the worksite or the
         work environment at 6521 N. Palatine, Seattle, Washington.
      10. On April 26, 2016, Tradesmen did not know, nor through the
          applicable diligence could it have known, of the safety and health
          hazards to which [the temporary worker] was exposed at 6521 N.
          Palatine, Seattle, Washington.

      The Department appealed the Board’s decision to the Superior Court,

which affirmed the Board’s decision. The Department appeals.

                                  II. ANALYSIS

      In WISHA appeals, we review the Board’s decision based on the record

before the agency. Erection Co. v. Dep’t of Labor & Indus., 160 Wn. App. 194,

201, 248 P.3d 1085 (2011). We review the Board’s findings of fact to determine

whether substantial evidence supports them. Potelco, Inc. v. Dep’t of Labor &

Indus., 191 Wn. App. 9, 21, 361 P.3d 767 (2015). Substantial evidence is what

“would persuade a fair-minded person of the truth or correctness of the matter.”

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No. 79634-8-I/6


Erection Co., 160 Wn. App. at 202. If substantial evidence supports the factual

findings, then the findings are conclusive and we next determine whether the

findings support the conclusions of law. Id. at 202. We view the evidence and its

reasonable inferences in the light most favorable to the prevailing party in the

highest forum that exercised fact-finding authority. See id. at 202. Thus, we

must view such evidence and inferences in the light most favorable to

Tradesmen, who prevailed before the Board.

       “The legislature enacted [WISHA] ‘to assure, insofar as may reasonably

be possible, safe and healthful working conditions for every [worker] in the state

of Washington.’” Id. at 201 (quoting RCW 49.17.010). We liberally interpret

WISHA statutes and regulations to achieve their purpose of providing safe

working conditions for every Washington worker. Id. at 202.

       WISHA renders employers responsible for the health and safety of their

employees. Potelco, 191 Wn. App. at 30. “Any entity that engages in any

business and employs one or more employees is an employer for WISHA

purposes.” Martinez Melgoza & Assoc., Inc. v. Dep’t of Labor & Indus., 125 Wn.

App. 843, 848, 106 P.3d 776 (2005) (citing RCW 49.17.020(4)). To promote

WISHA’s safety objectives, if two or more employers share responsibility for the

same employee “the Department may cite multiple employers for violating

workplace safety standards.” Potelco, 191 Wn. App. at 30.

   A. Dual Employer Directive

       The Department argues that the Board erred by declining to apply the

Directive and by failing to conclude that Tradesmen is liable for the WISHA

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No. 79634-8-I/7


violations under the “knew or clearly should have known” standard. Tradesmen

responds that the Directive does not apply and, even if it did, substantial

evidence supports the Board’s finding that Tradesmen neither knew nor clearly

should have known of the WISHA violations. We decline to apply the standard

from the Directive.

       The Department developed internally the Directive to “establish[]

inspection and enforcement policies for assessing situations where two or more

employers may share liability for safety or health violations that expose

employees to workplace hazards.” Directive at 1. The Department noted that

“[d]ual employer situations have increased over recent years with the growth of

temporary services and employee leasing agencies, which provide employees to

work at a site under the supervision and control of another employer.” Directive

at 1. The Directive refers to primary and secondary employers. Directive at 1-5.

A primary employer is the “employer of record, who contracts with the employee

to perform work in exchange for wages or a salary and issues the employee’s

pay check, secures workers’ compensation insurance for the employee, and

usually retains hiring and firing authority.” Directive at 1. Here, Tradesmen is the

primary employer. Secondary employers, like Dochnahl, are those who control

the employee at the job site. Directive at 1.

       Under the Directive, the Department will typically decline to cite a primary

employer for safety and health violations at the job site so long as they meet

certain requirements for providing training and personal protective equipment

and do not supervise or control the employees’ work activities at the job site.

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No. 79634-8-I/8


Directive at 2. The Department may cite a primary employer, however, “if they

had knowledge or clearly should have had knowledge of the violation.” Directive

at 5. The Department asserts that a primary employer meets the “clearly should

have known” standard if they could have discovered the violation through

reasonable diligence.

       But the Department did not promulgate the Directive under the rulemaking

requirements of the Administrative Procedure Act (APA). In contrast to agency

rules, the Directive constitutes a policy statement, which lacks the force of law

and is advisory only. See J.E. Dunn Nw., Inc. v. Dep’t of Labor & Indus., 139

Wn. App. 35, 51-53, 156 P.3d 250 (2007) (explaining why WISHA Regional

Directive 27.00, which was not promulgated under the APA, cannot operate to

shift burden of proof on element of WISHA violation). We thus decline to apply

the “knew or clearly should have known” standard from the Directive.2


       2 The Department also asserts that we should defer to OSHA cases applying the
“knew or clearly should have known” standard to staffing agencies because WISHA is
meant to be as effective as OSHA. But the cases cited by the Department for this
proposition, Barbosa Grp., Inc., 2005 CCH OSHD (No. 02-0865, 2007) and Aerotek,
2018 CCH OSHD (No. 16-0618, 2018), do not explicitly apply the “knew or clearly
should have known” standard and are distinguishable on their facts, as the staffing
agencies provided on-site managers. Tradesmen did not provide any on-site manager
at Dochnahl’s Federal Avenue or Palatine Avenue job sites and did not otherwise
exercise comparable control over the sites.
        Furthermore, even if we were to apply the knowledge standard, we would not
conclude that Tradesmen is a liable employer for the violations at issue. The record
demonstrates that Tradesmen’s protocol was for clients, such as Dochnahl, to notify it
before moving a temporary worker to a job site that Tradesmen had not yet inspected.
Despite this protocol, the record shows that Dochnahl did not inform Tradesmen that it
was sending the temporary worker to the Palatine Avenue job site and that Tradesmen
did not have the opportunity to inspect the Palatine Avenue job site for safety violations.
This constitutes substantial evidence to support the Board’s finding that “Tradesmen did
not know, nor through the applicable diligence could it have known, of the safety and
health hazards to which [the temporary worker] was exposed at 6521 N. Palatine,
Seattle, Washington.”
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No. 79634-8-I/9


   B. Economic Realities Test

       The Department next claims that the Board erred by concluding that

Tradesmen is not a liable employer under the economic realities test.

Tradesmen responds that the Board correctly determined that, under the test, it

was not an employer because it did not control the job site or the temporary

worker. We agree with Tradesmen.

       Washington courts use the “economic realities test” in cases of leased or

temporary workers to determine who is an employer for the purposes of a

WISHA citation. Potelco, 191 Wn. App. at 30-31. The test involves seven

factors:
       1) who the workers consider their employer;
       2) who pays the workers’ wages;
       3) who has the responsibility to control the workers;
       4) whether the alleged employer has the power to control the
       workers;
       5) whether the alleged employer has the power to fire, hire, or
       modify the employment condition of the workers;
       6) whether the workers’ ability to increase their income depends on
       efficiency rather than initiative, judgment, and foresight; and
       7) how the workers’ wages are established.

Id. at 31. Under this test, “[t]he key question is whether the employer has the

right to control the worker.” Id. at 31. The record lacks evidence on the first and

sixth factors.3 We address the remaining factors in turn.



       3
         The Department asserts that the first factor shows Tradesmen was an employer
for the purposes of the citation. But the Department’s argument under this factor is that
the temporary worker believed Tradesmen to be his employer because Tradesmen hired
him, leased him to Dochnahl, and he could call his Tradesmen supervisor with
questions. These points fail to address who the temporary worker considered as his
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No. 79634-8-I/10


       Payment of Wages

       Under the CSA, Tradesmen agreed to pay the temporary worker wages

owed for work under the agreement. This factor suggests Tradesmen was an

employer with respect to the citation.

       Responsibility to Control the Worker

       Dochnahl, not Tradesmen, had the responsibility to control the worker

under their contract. In the CSA, Dochnahl agreed that it would be “solely

responsible for directing, supervising and controlling Tradesmen employees as

well as their work” and “to provide Tradesmen workers a safe work environment

that complies with all applicable Federal [Occupational Safety Hazard Act

(OSHA)] and/or equivalent state agency standards.” Because Dochnahl agreed

to assume the responsibility for controlling the temporary worker assigned to it,

this factor weighs against considering Tradesmen an employer.

       Power to Control the Worker

       Tradesmen had some control over the temporary worker as it controlled

his work assignments. But the record shows Tradesmen had little control over

the temporary worker’s work and duties at the job sites. While Tradesmen would

have a field representative inspect the job site for safety, it did not have any

Tradesmen employees at the job site to supervise the temporary worker.

Tradesmen lacked any authority to control Dochnahl’s project or the work done

there. That Dochnahl moved the temporary worker to a new job site without the



employer while at the Palatine Avenue job site, and thus do not sufficiently address the
first factor.
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No. 79634-8-I/11


temporary worker informing Tradesmen also shows Tradesmen’s lack of control

over the temporary worker.

       Tradesmen also lacked control over the Palatine Avenue job site.

Although the Department asserts that courts do not consider control over the job

site as part of the economic realities test, legal authority holds otherwise. See

Potelco, 191 Wn. App. at 32 (considering whether the alleged employer

exercised control over the job site under the economic realities test). The Board

has also previously noted that “in leased employment situations, whether the

lessor or the lessee should be cited for WISHA violations depends on the

economic realities of who controls the workplace. Both employers cannot be

cited unless they both have substantial control over the workers and the work

environment involved in the violations.” In re Skills Res. Training Ctr., No. 95

W253, at 2 (Wash. Bd. of Ind. Ins. App. Aug. 5, 1997) (emphasis added). While

Tradesmen typically inspected a job site to ensure it was safe, here it did not

have a chance to do so because Dochnahl sent the temporary worker to the

Palatine Avenue job site without notifying Tradesmen. This factor also weighs

against Tradesmen being considered an employer.

       Power to Fire, Hire, or Modify the Employment Condition of the Worker

       Under the CSA, Dochnahl had the sole discretion to terminate a temporary

worker from its employ. But only Tradesmen could fire a temporary worker from

its staffing company. Tradesmen also lacked the power to modify the

employment conditions of the temporary worker, as it did not control the “means

and methods” of the temporary worker’s performance. Finally, although

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No. 79634-8-I/12


Tradesmen would inspect the job site for safety reasons, Dochnahl was

responsible for providing a safe work environment and any specific safety

training or equipment. While this factor presents a close question, because we

must view the evidence and reasonable inferences therefrom in the light most

favorable to Tradesman, it weighs against holding Tradesman liable as an

employer.

       Establishment of Worker’s Wage

       In the CSA, Tradesmen agreed to “determine and provide compensation,

including wages and benefits.” This factor supports Tradesmen being an

employer.

       Thus, the two factors relating to control—plus the factor relating to the

power to hire, fire, or modify the employment condition of the worker—weigh

against us considering Tradesmen an employer for purposes of the citation. The

Department did not challenge the Board’s finding that Tradesmen did not control

the job site or the work environment at the Palatine Avenue job site.

Unchallenged findings of fact constitute verities on appeal. Potelco, 191 Wn.

App. at 22. While two other factors support Tradesmen being an employer, as

stated above, the key question of the test is who had the right to control the

worker.

       We determine substantial evidence supports the Board’s findings that

Tradesmen did not have control over the temporary employee when at a job site

for Dochnahl and did not control the Palatine Avenue job site. And the Board’s



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No. 79634-8-I/13


findings support its conclusion that the Department could not cite Tradesmen as

an employer for the WISHA violations.4

       We affirm.




 WE CONCUR:




       4
         This outcome tracks Board and Occupational Safety and Health Commission
cases that have addressed similar facts. See Skills Res. Training Ctr., slip op. at 4
(determining that a company that provided workers to employers “operated as a human
resources department” and was not an employer under WISHA); Union Drilling, 16
OSHC 1741 (No. 93-154, 1994) (deciding that although the company providing the
personnel paid the workers and controlled their work assignments, it was not an
employer for WISHA purposes); Murphy Enterprises, dba Murphy Brothers Exposition,
17 OSHC 1477 (No. 93-2957, 1995) (noting that an employee leasing company was not
an employer under WISHA even though it handled payroll and other administrative
tasks); MLB Indus., Inc., 12 OSHC 1525 (No. 83-231, 1985) (concluding that a company
was not liable as an employer under WISHA because it merely served as a “conduit for
labor”).
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