When a court orders someone on probation or parole to perform community service hours at a non-profit or government agency, is the worker an OSHANC-covered employee, and is the agency an OSHANC-covered employer responsible for worker safety?

Plain-English summary

NC's Community Service Work Program places probationers, deferred-prosecution participants, and parolees with non-profit and governmental agencies to perform court-ordered community service hours. Gary Eichelberger, the Division Director, asked the AG whether OSHANC (NC's state-equivalent of federal OSHA) covers these workers and makes the receiving agencies responsible for their workplace safety.

Senior Deputy AG Reginald L. Watkins and Special Deputy AG Ralf F. Haskell said no. The receiving agencies do not have the kind of control over community service workers that makes an employer-employee relationship under OSHANC.

The analysis runs through three categories of "workers" placed with government or non-profit agencies, distinguishing each by control characteristics:

Prisoners working inside prison. Not OSHANC-covered. State prison work programs are governed by N.C.G.S. § 148-26(a), which describes the purpose as "public benefit to reduce the cost of maintaining the inmate population while enabling inmates to acquire or retain skills." Prisoners working in prison are not employed in any "business or other capacity of [an] employer." The Department of Correction is not an employer for OSHANC purposes.

Work-release prisoners in the free community. OSHANC-covered. Per N.C.G.S. § 148-33.1, the free-community employer of a work-release prisoner pays wages (subject to deductions) and is supervised by the Department of Labor the same way it would be for free-person employment. § 148-33.1(e) makes this explicit. So while the prisoner's state-prison-system relationship is non-OSHANC, the free-community employer is OSHANC-covered.

Community service workers. Not OSHANC-covered. This is the heart of the opinion. The Acchione/MLB Industries test asks who controls the worker's activities, work environment, and termination. For community service workers:

• The receiving agency cannot fire the worker. Refusal to keep the worker just leads to the Coordinator transferring the worker to another agency.
• The worker receives no compensation from the receiving agency.
• The receiving agency supervises the work for safety and productivity, but the Community Service Coordinator (not the agency) reports problems to the court or Parole Commission, which has ultimate authority over discipline (revoking probation, returning to court for further sentencing).
• The court or Parole Commission, not the receiving agency, can take "appropriate action" if the worker fails to perform.

The receiving agency's role is more like a supervisor-host than an employer. The employer functions (control over work environment, power to fire, payment of wages) are scattered across the Coordinator, court, and Parole Commission, with no single entity holding all of them. None of the entities meets the OSHANC employer definition.

Practical consequence. Community service workers do not get OSHANC protection at their placement sites. The receiving agencies do not face OSHANC citations or penalties for safety hazards affecting community service workers (though they still face OSHANC liability for their paid employees who may be present at the same site). The Department of Labor is expected to determine OSHANC coverage of community service workers on a case-by-case basis using the AG's factor analysis.

The opinion is also a useful framework for analyzing employer-employee relationships in the broader category of placement programs, including federal Job Corps, vocational rehabilitation, and welfare-to-work programs. The core question is always control, and control runs to whoever has the authority over the worker's activities, compensation, and termination.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. OSHANC has been amended on multiple occasions since 1993, including changes to definitions, coverage, and enforcement procedures. The Community Service Work Program has also evolved, with various structural changes to the Division and the Coordinator role. The general framework (employer-employee relationship based on control) has carried forward, but the specific operational analysis may differ under current statutes and rules.

Background and statutory framework

NC's Occupational Safety and Health Act is a state plan approved by federal OSHA under 29 U.S.C. § 667. State plans must be at least as effective as the federal standard. OSHANC mirrors the federal OSHA Act in basic structure: an employer general duty to provide a safe workplace, specific standards for various industries and hazards, enforcement through inspections and citations, and a state Department of Labor with administrative authority.

The employer-employee relationship is foundational. OSHANC, like federal OSHA, regulates the workplace through the employer. If there is no covered employer, there is no covered workplace. The Acchione/MLB Industries test from the federal Review Commission focuses on control because control is the practical basis for compliance: only the entity that controls the work can implement OSHA-required safety measures.

The community service worker analysis is intuitive once the control test is laid out. A receiving non-profit that takes a court-ordered worker for 50 hours of trash pickup or grounds maintenance is not really their "employer" in any meaningful sense. The non-profit cannot set wages, cannot fire, cannot determine length of employment (the court does), and cannot really discipline (only refer back to Coordinator). Without those traditional employer attributes, OSHANC coverage would be a mismatch.

The prisoner work-release distinction is also instructive. Internal prison work is non-OSHANC because the Department of Correction is not running a business; it is rehabilitating inmates. External work-release is OSHANC because the outside employer is running a business and pays the inmate as a regular employee. The location and nature of the work determine the legal framework.

The opinion does leave open some questions. What about volunteers in non-court contexts? What about interns? The 1993 opinion focuses narrowly on community service workers, but the analytical framework would extend to other relationships where control is divided or where compensation is absent.

Common questions

What does this mean for receiving agencies' own employees?

OSHANC coverage applies to the agency's regular paid employees. The agency cannot escape OSHANC by characterizing all its workers as community service participants. The opinion's conclusion is narrow: community service workers themselves are not OSHANC-covered, but paid employees of the same agency working at the same site remain covered.

Could a receiving agency still be liable for harm to a community service worker?

Yes, under tort law (negligence, premises liability). OSHANC coverage is a separate regulatory question from tort liability. A receiving agency that exposes a community service worker to unreasonable risks can be sued for the resulting injuries even though OSHANC does not apply.

Are community service workers covered by workers' compensation?

The opinion does not address workers' compensation directly. The workers' comp framework has its own definitions of "employee" and "employer" and its own coverage rules. Anyone facing this question should consult Chapter 97 and current Industrial Commission guidance.

What if the community service program changes its structure so the agency controls compensation and termination?

The control analysis would change correspondingly. The AG's framework is fact-driven; if the operational facts change (e.g., the agency starts paying community service workers, or the agency obtains termination authority), OSHANC coverage could be triggered. The Department of Labor's case-by-case determination is the operative mechanism.

Source

• Landing page: https://ncdoj.gov/opinions/applicability-of-the-occupational-safety-and-health-act-of-north-carolina/

Citations

• N.C.G.S. § 95-127(9)
• N.C.G.S. § 95-127(10)
• N.C.G.S. § 95-128
• N.C.G.S. § 95-129
• N.C.G.S. § 148-26(a)
• N.C.G.S. § 148-33.1
• Acchione and Canuso, Inc., 80 OSAHRC 5/B4, 1980 OSHD ¶ 24,174
• MLB Industries, Inc., 85 OSAHRC 42/A3, 1984-1985 OSHD ¶ 27408

Original opinion text

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 (919/733-3949) are available for assistance.

Reginald L. Watkins
Senior Deputy Attorney General

Ralf F. Haskell
Special Deputy Attorney General