OR-OSHA v. Laborworks Ind. / Tradesman Int.

66 October 8, 2025 No. 871

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

OREGON OCCUPATIONAL SAFETY & HEALTH

DIVISION,

Petitioner,

v.

LABORWORKS INDUSTRIAL STAFFING SPECIALISTS,

Respondent.

Workers’ Compensation Board

1900027SH;

A181540

OREGON OCCUPATIONAL SAFETY & HEALTH

DIVISION,

Petitioner,

v.

TRADESMEN INTERNATIONAL HOLDINGS LLC,

Respondent.

Workers’ Compensation Board

1900011SH;

A181567

Argued and submitted November 1, 2024.

Erin K. Galli, Assistant Attorney General, argued

the cause for petitioner. Also on the briefs were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Aaron K. Owada, Washington, argued the cause for

respondents. Also on the brief were James S. Anderson,

Owada Law, P. C., and Cummins, Goodman, Denley &

Vickers, P. C.

Before Shorr, Presiding Judge, Powers, Judge, and

Pagán, Judge.

POWERS, J.

Reversed and remanded.

Cite as 344 Or App 66 (2025) 67

68 OR-OSHA v. Laborworks Ind. / Tradesman Int.

POWERS, J.

In these petitions for judicial review, consolidated

for purposes of this opinion, the Occupational Safety and

Health Division of the Oregon Department of Consumer and

Business Services, which is also known as OR-OSHA, seeks

review of two orders of an administrative law judge (ALJ)

of the Workers’ Compensation Board. The orders vacated

citations issued by OR-OSHA under the Oregon Safe

Employment Act (OSEA) against respondents Laborworks

Industrial Staffing Specialists, Inc. (Laborworks) and

Tradesmen International Holdings, LLC (Tradesmen).

Respondents are temporary staffing agencies that provide

temporary employees to “host employer” clients. OR-OSHA

separately cited respondents for failing to provide their

employees with training relating to hazards on the job sites

of the “host employers.” The ALJ vacated the citations,

determining that respondents were not “employers” subject

to the OSEA, because they did not control the work prem-

ises or supervise the work sites of their employees at the

premises of the host employers. On review, OR-OSHA con-

tends that the ALJ misconstrued ORS 654.005, the statu-

tory provision defining who is a subject employee and who

is a subject employer, to conclude that respondents were not

employers subject to the OSEA. Reviewing the ALJ’s orders

under ORS 183.482(1) and ORS 654.290(2) for substantial

evidence and errors of law, we agree with OR-OSHA’s con-

tention that the ALJ committed legal error in the construc-

tion of ORS 654.005(5)(a) and (c). Accordingly, we reverse

and remand the ALJ’s orders for further proceedings.

We summarize the largely undisputed facts from

the ALJ’s orders. Laborworks assigned its employee, Moody,

a maintenance technician, and three other individuals,

to work as temporary employees of ALSCO, a commer-

cial laundry. Laborworks had no control over the ALSCO

worksite or the work of the Laborworks employees but paid

the Laborworks employees’ wages and provided them with

workers’ compensation insurance coverage. Moody filed a

complaint against ALSCO with OR-OSHA, which caused

an OR-OSHA compliance officer to perform an inspection

Cite as 344 Or App 66 (2025) 69

of ALSCO. Based on that inspection, OR-OSHA cited both

ALSCO and Laborworks.1

Tradesmen assigned its employee, Parsons, to Par-

Tech Construction, Inc., as a temporary worker. Tradesmen

had no control of the Par-Tech worksite or Parsons’s work, but

Tradesmen paid Parsons’s wages and provided Parsons with

workers’ compensation insurance coverage. Par-Tech was a

general contractor providing construction work to the City

of Florence at the Florence City Hall. Parsons, a skilled car-

penter, worked on the roof of city hall. An OR-OSHA compli-

ance officer inspected the Par-Tech jobsite and noticed that

Parsons did not have fall protection. OR-OSHA cited both

Par-Tech and Tradesmen under OAR 437-001-0760(1)(a)

for failing to ensure that Par-Tech had provided site-specific

fall protection training to Parsons.

Both Laborworks and Tradesmen requested a hear-

ing to challenge the citations, contending that, because they

had no control over the worksites or the work of their employ-

ees, they were not “employers” as defined in ORS 654.005,

for purposes of the OSEA. ORS 654.005 defines who is

“include[ed]” as an employee and employer under the OSEA:

“As used in this chapter, unless the context requires

otherwise:

“* * * * *

“(4) ‘Employee’ includes:

“(a) Any individual, including a minor whether law-

fully or unlawfully employed, who engages to furnish ser-

vices for a remuneration, financial or otherwise, subject to

the direction and control of an employer.

“(b) Salaried, elected and appointed officials of the state,

state agencies, counties, cities, school districts and other

public corporations.

1

OR-OSHA cited Laborworks under ORS 654.010 for failing to provide a

safe place of employment, under OAR 437-001-0760(1)(a), and under two federal

regulations. The violations related to a failure to provide training on bloodborne

pathogen hazards and “lock-out/tag-out” procedures, and a failure to have a writ-

ten hazard communication program. OAR 437-001-0760(1)(a) provides, in part:

“The employer must see that workers are properly instructed and super-

vised in the safe operation of any machinery, tools, equipment, process, or

practice that they are authorized to use or apply.”

70 OR-OSHA v. Laborworks Ind. / Tradesman Int.

“(c) Any individual who is provided with workers’ com-

pensation coverage as a subject worker pursuant to ORS

chapter 656, whether by operation of law or by election.

“(5) Employer’ includes:

“(a) Any person who has one or more employees.

“(b) Any sole proprietor or member of a partnership

who elects workers’ compensation coverage as a subject

worker pursuant to ORS 656.128.

“(c) Any successor or assignee of an employer. As used

in this paragraph, ‘successor’ means a business or enter-

prise that is substantially the same entity as the predeces-

sor employer according to criteria adopted by the depart-

ment by rule.”

The criteria listed in ORS 654.005(4) and (5) are

not conjunctive, meaning that they define “employee” and

“employer” in three alternative ways. See Moe v. Beck, 311

Or 499, 505, 815 P2d 692 (1991) (describing the definition of

“owner” in ORS 654.005(6) as defining “owner” in alterna-

tive ways).2 Therefore, any one of the three criteria in each

subsection meets the definition of employee or employer.

Thus, a person is an “employee” under ORS 654.005(4) if

the person meets any one of the three criteria listed in that

subsection. Similarly, a person—which is a term defined in

ORS 654.005(7)—is an “employer” if the person meets any

one of the three criteria listed in ORS 654.005(5).3

Here, Moody (and the three other Laborworks

employees who worked at the laundry) and Parsons were

provided workers’ compensation insurance coverage by

Laborworks and Tradesmen, respectively. ORS 654.005(4).

Thus, they were employees under ORS 654.005(4)(c). And

Laborworks and Tradesmen each had one or more employees.

Thus, they were employers as defined in ORS 654.005(5)(a).

The ALJ acknowledged that Moody (and the three other

2

ORS 654.005(6) defines an “owner” as “every person having ownership, con-

trol or custody of any place of employment or of the construction, repair or main-

tenance of any place of employment.”

3

ORS 654.005(7) defines a “person” as “one or more individuals, legal rep-

resentatives, partnerships, joint ventures, associations, corporations (whether or

not organized for profit), business trusts, any organized group of persons, the

state, state agencies, counties, municipal corporations, school districts and other

public corporations or subdivisions.”

Cite as 344 Or App 66 (2025) 71

Laborworks employees) and Parsons both clearly fell within

the definition of “employee” under ORS 654.005(4), and that

Laborworks and Tradesmen both fell within the definition of

an “employer” under ORS 654.005(5).

Despite acknowledging that the statutory defini-

tions were met, however, the ALJ concluded that they did

not apply. Focusing on the unique circumstance of a “joint

employment” situation—under which one employer is a tem-

porary staffing agency with no site-specific control or knowl-

edge of the worksite—the ALJ reasoned that the statutory

definitions were inapplicable because this was an “unless

the context requires otherwise” situation as contemplated

by the statute’s preamble, which provides that the defini-

tions apply in ORS chapter 654 “unless the context requires

otherwise.” Relying on federal case law and the purpose of

the OSEA as provided by ORS 654.003, which is to “ensure

as far as possible safe and healthful working conditions for

every working person in Oregon,” the ALJ reasoned that,

notwithstanding the statutory definitions, an employer is

subject to the provisions of the OSEA only if it has control

over the workplace. The ALJ also reasoned that that conclu-

sion was consistent with ORS 654.005(4)(a), which lists as

one of the alternative definitions of “employee” a person who

is “subject to the direction and control of an employer.” In

the order relating to Tradesmen, the ALJ explained:

“I do not see how [Tradesmen], having no knowledge of

what work the temporary employees would be assigned to

perform each day and what hazards would be associated

with that work, can be subject to citation by OR-OSHA for

failing to ensure that the host-employer provided site-spe-

cific fall protection training.

“An employer is clearly within the jurisdiction of

OR-OSHA when they have control over a work environ-

ment. In this case, Tradesmen had no control over the

workplace. Prior cases under federal law consider the eco-

nomic realities in making the determination as to whether

there is an employment relationship subject to OR-OSHA’s

jurisdiction. While the question of who pays the workers’

wages is of interest, the courts have come down to consid-

ering the most significant factor to be whether the alleged

employer has the right of control.

72 OR-OSHA v. Laborworks Ind. / Tradesman Int.

“* * * * *

“OR-OSHA has not met its burden of proof. I am not

persuaded that OR-OSHA has established, under the facts

of this case, that Defendant is subject to the jurisdiction

of OR-OSHA. For that reason, the November 28, 2018

Citation and Notification of Penalty must be VACATED.”

The order addressing the citations against Laborworks con-

tains a substantially identical analysis.4

On judicial review, OR-OSHA asserts that the ALJ

misconstrued ORS 654.005, which it contends is unambigu-

ous and under which both Laborworks and Tradesmen are

clearly defined as employers and therefore subject to the

OSEA. OR-OSHA further asserts that the ALJ erred in

referring to federal case law for a definition of “employer,”

when the Oregon Revised Statutes include a definition.

Although respondents acknowledge that the statu-

tory definitions technically apply, they nevertheless defend

the ALJ’s determination because, in their view, “control” is

an “essential element” of being an employer and therefore the

ALJ did not err in determining that they were not employ-

ers. Citing the articulated purpose of the OSEA in ORS

654.003 that “[t]he purpose of the Oregon Safe Employment

Act is to ensure as far as possible safe and healthful working

conditions for every working person in Oregon,” they argue

that the OSEA cannot plausibly be understood to apply to

an employer who has no control of the work or the place of

employment. For instance, respondents assert, “If it is not

possible for an employer to correct the hazard, it hardly

seems appropriate to cite an employer for something it has

no control over. Yet, that is precisely what OR-OSHA is doing

here.” Respondents further note the focus of the OSEA on

the “place of employment,” noting that ORS 654.010 provides

that every employer is required to “furnish employment

and a place of employment which are safe and healthful for

employees therein.” Emphasizing the use of the term “and” in

ORS 654.010, respondents argue that the OSEA applies only

4

The ALJ characterized the issue as “jurisdictional,” reasoning that the

board has jurisdiction only over “employers.” Whether or not that is a correct

characterization is not dispositive of our analysis and we therefore do not address

it in this opinion.

Cite as 344 Or App 66 (2025) 73

to employers who furnish both “employment” and “a place of

employment.” Respondents further argue that, considering

the unique circumstances of a temporary staffing agency,

the ALJ did not err in concluding that “context requires

otherwise” and that federal case law provided a persuasive

definition that includes a requirement of control.

The parties’ dispute presents a question of statutory

construction, which we review for legal error, seeking to give

effect to the legislature’s statutory intent as demonstrated

by the text, context, and any helpful legislative history.

State ex rel Rosenblum v. Living Essentials, LLC, 371 Or 23,

33, 529 P3d 939 (2023); see generally State v. Gaines, 346 Or

160, 171-73, 206 P3d 1042 (2009) (describing methodology).

We agree with OR-OSHA that the ALJ erred.

Although it is true that we may look to federal case law on

issues on which there are federal statutory or regulatory

counterparts, for the particular provision at issue in this

case, Oregon has adopted its own unambiguous definition

of “employer,” and there is no basis for referring to federal

case law that applies a different definition. See OR-OSHA v.

Don Whitaker Logging, Inc., 329 Or 256, 263, 985 P2d 1272

(1999) (concluding that reliance on federal case law was mis-

placed where the OSEA provision was unique to Oregon and

had no counterpart in the federal OSHA).

The difficulty with the argument advanced by

respondents that relies on the ALJ’s conclusion that this

is a “context requires otherwise” situation is that there is

no context—other than the outcome—to suggest that we

should ignore the explicit definitions the legislature pro-

vided in ORS 654.005. For instance, no other applicable

statute defines “employer” in a way that would exclude an

employer that acts as a temporary staffing agency from the

OSEA provisions without control of the worksite. And there

is nothing in the OSEA statutory framework that suggests

an intent to exclude from the definition of “employee” an indi-

vidual who, although covered by workers’ compensation, was

not working at the direction and control of the entity that

provided that coverage.5 Thus, the only remaining potential

5

Indeed, a contrary intention might be inferred from the legislature’s inclu-

sion of an “owner” of a place of employment among those subject to the OSEA. See

74 OR-OSHA v. Laborworks Ind. / Tradesman Int.

context that could drive the interpretation is respondents’

business model. In our view, that context is not a persuasive

reason to avoid the explicit definitions provided by the legis-

lature in the statutory framework.

In short, respondents were “employers” subject to

the OSEA, as unambiguously defined in ORS 654.005(5),

and we are not at liberty to judicially amend the statute to

require an element of control. See ORS 174.010 (providing

that the court’s role in statutory interpretation “is simply to

ascertain and declare what is, in terms or in substance, con-

tained therein, not to insert what has been omitted”). Thus,

for the foregoing reasons, we conclude that the ALJ erred in

determining that respondents were not employers under the

OSEA.

Reversed and remanded.

Moe, 311 Or at 505 (holding that, in a negligence action under the employer liabil-

ity law, ORS 654.305 to ORS 654.336, the statutory definition of “owner” in ORS

654.005 applied, and that a defendant finance company that owned but had no cus-

tody or control of the truck that was the worker’s place of employment, was none-

theless subject to the OSEA); ORS 654.015 (providing that “[n]o employer or owner

shall construct or cause to be constructed or maintained any place of employment

that is unsafe or detrimental to health”); cf. Brown v. Boise-Cascade Corp., 150 Or

App 391, 407-08, 946 P2d 324 (1997), rev den, 327 Or 317 (1998) (discussing Moe

and describing the scope of an owner’s obligations under the OSEA, for purposes of

liability under the employer liability law, ORS 654.305 to ORS 654.336, as whether

“the regulation whose violation underlies the OSEA claim is one that either explic-

itly, or by nature, imposes obligations on owners of premises”).