October 5, 1993
Mr. Gary Eichelberger Director of the Division of Victim and Justice Services Department of Crime Control and Public Safety 512 North Salisbury Street Raleigh, North Carolina 27611
Re: Advisory Opinion; Applicability of the Occupational Safety and Health Act of North Carolina, Article 16 of Chapter 95 of the General Statutes of North Carolina, to Community Service Workers
Dear Mr. Eichelberger:
You requested our opinion on the applicability of the Occupational Safety and Health Act of North Carolina (hereinafter referred to as "OSHANC") to community service workers participating in the Community Service Work Program.
Your specific question is whether a community service worker and the recipient agency are considered a covered employee/employer for the purposes of the OSHANC. Based upon the information provided in Mr. Issac Avery’s letter to Mr. Ralf Haskell on July 9, 1993, the material facts, as we understand them, are as follows. The Community Service Work Program within the Division of Victim and Justice Services places probationers, persons under the Deferred Prosecution Program, and parolees with non-profit or governmental agencies for the purpose of performing community service work required by either a deferred prosecution agreement, a probationary judgment, or a parole determination.
According to Mr. Avery’s July 9, 1993 letter, the following conditions apply to community service workers: 1) they are required to perform a specified number of community service hours; 2) they must report to a Community Service Coordinator who has contracted with non-profit and governmental recipient agencies; 3) the Community Service Coordinator assigns the community service worker to an agency based upon the needs of the agency and the skills and abilities of the worker; 4) the recipient agency’s personnel assign specific tasks to the worker; 5) the recipient agency’s personnel monitor the work and report back to the Coordinator on whether or not the work was performed satisfactorily; 6) the worker receives no compensation of any kind; 7) the recipient agency can refuse to place any worker; 8) the Coordinator must place a worker with another agency if an agency refuses to place the worker; 9) the worker cannot be fired but can be transferred from agency to agency; and, 10) if the worker refuses to perform adequately, the Coordinator will report the worker back to the court or the Parole Commission as failing to comply.
Although the OSHANC does not reference "community service workers" specifically, it does provide that its standards and regulations apply to "all employers and employees," with six exceptions. N.C. Gen. Stat. §95-128 (1989). The exceptions primarily relate to "employees" whose working environment is subject to various federal regulations. Therefore, the primary and dispositive question in determining whether a "worker" is covered by the OSHANC is whether he or she is an "employee" employed by an "employer" who does not fall within the exceptions to the OSHANC.
The term "employee" is statutorily defined as "an employee of an employer who is employed in the business or other capacity of his employer, including any and all business units and agencies owned and/or controlled by the employer." N.C. Gen. Stat. §95-127(9) (1989). In order to be an "employee" one must be in that class of workers who have an "employer," a term statutorily defined, in pertinent part, as "a person engaged in a business who has employees, including any state or political subdivision of a state. . . ." N.C. Gen. Stat. §95-127(10) (1989).
The federal Review Commission has established a test for determining whether or not an employer/employee relationship exists. This test considers the following factors: 1) whom the employee considers to be his employer; 2) who pays the employee’s wages; 3) who is responsible for controlling the employee’s activities; 4) who has the power, as opposed to the responsibility, to control the employee; and, 5) who has the power to fire the employee or to modify the employee’s employment conditions. Acchione and Canuso, Inc., Rev. Com. 1980, 80 OSAHRC 5/B4, 1980 OSHD ¶ 24, 174. In a modification of the test adopted in 1985, the Commissioners stated that three of these factors – who is responsible for controlling the employee’s activities, who has the power to control the employee, and who has the power to fire the employee or to modify the work conditions – are related to the issue of who controls the work environment and should be given particular emphasis when determining who is an employer under the OSHANC. MLB Industries, Inc., Rev. Com. 1985, 85 OSAHRC 42/A3, 1984-1985 OSHD ¶ 27408; Employment Safety and Health Guide (CCH) ¶509 (Feb. 2, 1982).
In light of the statutory definitions of "employee" and "employer" as well as the above employer/employee relationship test and pertinent provisions of the State Prison System Act, it appears that prisoners who work while in prison are not working for an "employer" with a "business purpose" as defined by the OSHANC since their employment is for the "public benefit to reduce the cost of maintaining the inmate population while enabling inmates to acquire or retain skills and work habits needed to secure honest employment after their release." N.C. Gen. Stat. §148-26(a) (1992). These prisoners are not "employees" who are "employed in the business or other capacity of his employer" within the meaning of the OSHANC, and the Department of Correction is not an "employer" within the meaning of the OSHANC. Therefore, prisoners working while in prison are not subject to coverage by the OSHANC.
Prisoners granted work-release in the free community may attain "employee" status because they are employed in the business of their "employer." N.C. Gen.Stat. §148-33.1(g) (1992) provides: "No prisoner employed in the free community under the provisions of this section shall be deemed to be an agent, employee, or involuntary servant of the State prison system. . . ." As employees in the free community, prisoners on work-release receive compensation for their work. After appropriate deductions, their work-release earnings are paid to them upon parole or discharge from prison in accordance with N.C. Gen. Stat. §148-33.1(f) (1992).
The legislature has made it clear that the Department of Labor has supervisory authority over the "employer" in the free community with respect to prisoners on work-release. N.C. Gen. Stat. §148-33.1(e) specifically provides that "[t]he State Department of Labor shall exercise the same supervision over conditions of employment for persons working in the free community while serving sentences imposed under this section as the Department does over conditions of employment for free persons." Unless the employer falls within an exception recognized in N.C. Gen. Stat. §95-128 (1989), we conclude the employer of a prisoner on work-release is subject to the coverage of the OSHANC.
Turning to workers in the Community Service Work Program, it appears, at first glance, that they hold jobs in the free community similar to prisoners on work-release and, therefore, would be subject to the coverage of OSHANC. However, in evaluating conditions for placement of community service workers using the employer/employee relationship test, we conclude the recipient agency lacks ultimate authority to control these workers and their activities, meaning that they do not fall within the scope of the OSHANC.
The recipient agency lacks power to fire community service workers who receive no remuneration for their work. Refusal of the recipient agency to place a worker merely results in the worker’s transfer to another agency. Further, although the recipient agency, pursuant to the Community Service Work Program Recipient Agency Agreement, agrees to "provide supervision of work participants insuring that the client is productive and working safely throughout the work assignment," the worker must report to a Community Service Coordinator who ultimately reports back to the court or the Parole Commission if the worker is not performing adequately. In response to unfavorable reports, the court or Parole Commission is authorized to take appropriate action.
Considering these circumstances, it is our opinion that the recipient agency does not exercise exclusive control over the worker’s work environment. Nor does it fall within the definition of the term "employer" contained in the OSHANC. Therefore, such workers are not covered under the OSHANC.
Notwithstanding the conclusions reached herein, the Department of Labor is expected to determine OSHANC coverage of community service workers on a case by case basis using the above factors. Being covered by the OSHANC simply means that an employer must provide to all its employees a safe and healthful workplace. If you wish to learn more about the OSHANC’s requirements, the Right to Know Division (919/733-2658) and Consultative Services (919/7333949) are available for assistance.
Reginald L. Watkins Senior Deputy Attorney General
Ralf F. Haskell Special Deputy Attorney General