IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STAFFMARK INVESTMENT, LLC, No. 52837-1-II

Respondent,

v.

WASHINGTON STATE DEPARTMENT UNPUBLISHED OPINION

OF LABOR & INDUSTRIES,

Appellant.

SUTTON,J. — Staffmark Investment, LLC appeals from the superior court’s judgment and 

order affirming the Board of Industrial Insurance Appeals’ (Board) decision and order. Braden 

Strumsky, a worker hired by Staffmark, crushed his foot working at a warehouse operated by 

Expeditors International of Washington. The Department of Labor and Industries (Department) 

cited Staffmark, as a joint employer, for safety violations under the Washington Industrial Safety 

and Health Act of 1973 (WISHA).

1

 Staffmark argues that (1)substantial evidence does not support 

the Board’s determination that Staffmark was an employer under the economic realities test, and 

(2) substantial evidence does not support the Board’s determination that Staffmark had 

constructive knowledge about the violations. We disagree and affirm.

 

1 Ch. 49.17 RCW.

Filed

Washington State

Court of Appeals

Division Two

February 19, 2020
No. 52837-1-II

2

FACTS

I. JOB SITE CITATION

Staffmark is an employment agency that provides employees to Expeditors2under a service 

providers’ agreement. Staffmark provided onsite general labor, such as forklift drivers, along with 

leads and quality control management. Staffmark provided onsite supervision through a manager 

and granted supervisory responsibilities to some of the leads. Both Staffmark and Expeditors 

maintained onsite managers and both designated employees as leads for each team. Expeditors 

directly employs a warehouse supervisor. 

As part of the contract with Expeditors, Staffmark charged Expeditors for the employees’ 

wages, plus a negotiated markup. Staffmark paid the employees’ wages including workers’ 

compensation insurance and health care benefits. Staffmark passed these costs to Expeditors 

through the markup charge for each employee. Expeditors requested additional labor from 

Staffmark according to the volume of business and Staffmark hired additional employees to fill 

those needs. 

Staffmark employees filled two roles for Expeditors: (1) unloading containers, and (2) 

putting away cargo at the warehouse. CP at 921. Under the service provider’s agreement, 

Expeditors paid Staffmark a 39 percent markup for general workers, and a 42 percent markup for 

forklift operators. 

Staffmark hired Strumsky and then leased him to Expeditors as a general worker. Andy 

Johnson, Staffmark’s onsite manager, interviewed and hired Strumsky to fill the position at the 

 

2 Expeditors International of Washington is a shipping and receiving facility that employs workers 

via Staffmark. Expeditors is not a party in this litigation.
No. 52837-1-II

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Expeditors warehouse where Strumsky was injured. Johnson oversaw Staffmark employees at 

four of Expeditors’ facilities. He worked on a daily basis and also maintained a permanent 

workstation at the facility where Strumsky was injured. Johnson conducted daily walkthroughs of 

the facility. 

Johnson provided Strumsky’s new-hire orientation, which consisted of a tour of the 

warehouse and an explanation of the types of freight that Strumsky would be handling. Johnson 

also reviewed Staffmark employee timesheets and administered payroll. 

Johnson had the ultimate authority to discipline or terminate Staffmark employees, 

including Strumsky, who were not meeting client standards. Johnson could also reassign 

employees who did not “fit in with [a] particular work group” to another client. Clerk’s Papers 

(CP) at 1081. On occasion, Johnson would terminate a Staffmark employee for “no-call, noshow,” or gross negligence. CP at 1073.

Expeditors divided the work into teams that typically consisted of two general workers and 

one forklift operator. The general workers worked with a forklift operator to unload goods from 

the container onto pallets. The Staffmark leads were general workers or forklift operators who 

Staffmark paid a higher wage to take on more responsibility. If Expeditors needed a Staffmark 

employee to assume a lead position, Johnson–Staffmark’s onsite manager–arranged for Expeditors 

to interview prospective leads. The Staffmark leads still reported to Staffmark even after being 

promoted by Expeditors. 

Johnson and the Staffmark leads helped ensure that Staffmark employees followed safety 

standards. Johnson attended monthly safety meetings along with Staffmark and Expeditors leads 
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and Expeditors supervisors. In his daily walkthroughs of the facility, Johnson looked for safety 

issues and ensured that Staffmark workers wore personal protective equipment. 

Both Staffmark and Expeditors leads were assigned to Strumsky’s shift. Staffmark leads 

ensured that their team followed the client’s dress code and wore the appropriate protective 

equipment. Both leads were responsible for immediate discipline of Staffmark workers. Both

leads referred more serious or on-going issues to Johnson because Staffmark leads could only 

reassign a Staffmark worker with Johnson’s approval. 

Both Staffmark and Expeditors leads attended daily shift meetings with Expeditors

supervisors to discuss staffing and safety issues and to receive work orders. Johnson often 

participated in these meetings. The Staffmark lead during Strumsky’s shift, Jeffrey Thysell, told 

Strumsky when to report to work. Ricky Maghanoy was the Expeditors lead during Strumsky’s 

shift. If Strumsky ever ran late, he would contact the Staffmark lead, Thysell. Maghanoy and 

Thysell distributed the workload among the teams before the start of each shift. 

Staffmark and Expeditors shared responsibility for training and certifying forklift 

operators. Staffmark assigned employees to the position of forklift operator if that employee had 

experience operating powered industrial trucks. Staffmark verified each employee’s experience 

by providing a written test to prospective forklift operators. After the employee passed the test, 

Staffmark approved the employee for practical training. 

Staffmark’s onsite manager or lead traditionally administered and scored the test. 

Staffmark’s staff gave Expeditors a blank copy of the test, and Johnson knew that Expeditors’ 

employees provided the test to forklift trainees while Strumsky worked there. After an employee 

passed the test, Expeditors provided practical training on the site-specific equipment. Expeditors 
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then certified the employee as a forklift operator and notified Staffmark of the change in position 

so that the employee could receive higher pay. 

Neither Staffmark nor Expeditors gave Strumsky the written test or certified him before he 

began operating a forklift. The only information Strumsky received regarding the operation of 

forklifts before he operated one was (1) an employee handbook that mentioned that a worker 

should not operate a forklift without Staffmark’s permission, and (2) a short video that described 

general safety topics. 

Strumsky believed he was following the appropriate process for becoming a forklift 

operator. He asked Maghanoy, the Expeditors’ lead during his shift, about becoming a forklift 

operator. Maghanoy discussed the possibility of training Strumsky with Thysell, the Staffmark 

lead assigned to Strumsky’s shift. Maghanoy asked for approval from the Expeditors supervisor

before training Strumsky to drive a forklift. Maghanoy knew that Strumsky was not “signed off 

completely” because “Staffmark wasn’t really following up” when Expeditors asked to train 

forklift operators. CP at 1044.

Maghanoy allowed Strumsky to operate the Expeditors forklifts in five or six sessions over 

a period of a month. Each session lasted about an hour. While most of the driving took place 

away from the main work area, the activity was still visible to the other employees in the 

warehouse. Other forklift operators often drove by the space where Strumsky was operating the 

forklift. Strumsky twice drove in a circle around the other workers. 

On October 1, 2015, Strumsky suffered serious injuries when he lost control of the standup forklift he was operating. Strumsky spent an hour unloading freight using a forklift. When he 
No. 52837-1-II

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finished, he drove the forklift 100 feet across the warehouse, lost control of the forklift, and crushed 

his left foot against a support beam. 

After conducting an investigation, the Department cited Staffmark for the following two 

WISHA violations:

1-1a. Serious. [WAC] 296-863-60005. Employer did not ensure employee 

successfully completed an operator training program before operating PITs 

(Powered Industrial Trucks).

1-1b. Serious. [WAC] 296-863-40010. Employer did not ensure operator 

operated PITs (Powered Industrial Trucks) according to the manufacturer’s 

instructions and kept PITs under control at all times.

CP at 1329. Both violations were characterized as “serious.” CP at 1329, 865.

II. STAFFMARK APPEALS TO THE BOARD

Staffmark appealed to the Board, arguing that Staffmark was not an employer for the 

purposes of WISHA. The Board rejected Staffmark’s argument, deciding that the Department 

properly cited Staffmark for safety violations at a joint employer work site because both employers 

exercised substantial control over the injured forklift driver and both were responsible for the 

safety violations. The Board affirmed the citations. 

The Board found that “Staffmark at least had constructive knowledge that Mr. Strumsky 

was operating the forklift in plain view on numerous occasions, and a Staffmark lead was aware 

he was being trained as a forklift driver.” CP at 68. The Board made the following relevant 

findings of fact:3

 

3 Although Staffmark assigns error to findings of fact 2 through 8, Staffmark only provides 

argument to challenge findings of fact 3 and 6. 
No. 52837-1-II

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3. During at least the month of October 2015, Staffmark and Expeditors both 

exercised substantial control over the workforce and workplace conditions at the 

Expeditors’ 24th Street Sumner facility. Both companies had lead workers and 

managers/supervisors assigned to the jobsite. Both companies provided substantial 

control of the work at the Expeditors’ 24th Street Sumner facility, and both could 

discipline Staffmark employees. Staffmark employees’ wages were established 

based on the companies negotiated Service Providers’ Agreement.

. . . .

6. On October 1, 2015, Staffmark and Expeditors jointly controlled the worksite 

and Staffmark employees at the Expeditors’ 24th Street Sumner facility at the time 

of the forklift accident at issue.

CP at 69-70.

The Board made the following relevant conclusions of law:4

2. On October 1, 2015, Staffmark and Expeditors were joint employers at the time 

of the forklift accident and both had control of the worksite and Staffmark 

employees at the joint employer worksite at the Expeditors’ 24th Street Sumner 

facility; therefore, Staffmark was properly cited for safety violations on February 

17, 2016, pursuant to In Re Skills Resource Training Center, BIIA Dec., 95 253 

(1997).

CP at 70-71.

III. STAFFMARK APPEALS TO THE SUPERIOR COURT

Staffmark appealed to the superior court, which also rejected its argument that it was not 

an employer for WISHA purposes. The superior court affirmed the Board’s decision and order. 

Staffmark now appeals to this court. 

 

4 Although Staffmark assigns error to conclusions of law 2 through 6, Staffmark only provides 

argument to challenge conclusion of law 2. 
No. 52837-1-II

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ANALYSIS

Staffmark argues that the Board erred by determining that Staffmark was an employer for 

the purposes of WISHA because Staffmark lacked sufficient control over the workers and the 

worksite and did not create or control the hazard. Staffmark further argues that the Board erred by 

determining that Staffmark had constructive knowledge of Strumsky operating the forklift in plain 

view because the forklift trainings were for short periods of time and away from where workers 

customarily worked. The Department argues that substantial evidence supports the Board’s 

determination that Staffmark was an employer under the economic realities test. The Department 

further argues that substantial evidence shows that Staffmark knew or should have known that the 

worker was operating a forklift without being trained because he operated the forklift in plain view. 

We agree with the Department.

I. STANDARD OF REVIEW

The purpose of WISHA is to assure, insofar as may be reasonably possible, safe and 

healthful workplace conditions for every person in the state of Washington. RCW 49.17.010. “As 

a remedial statute, WISHA and its regulations are liberally construed to carry out its purpose.” 

Elder Demolition, Inc. v. Dep’t of Labor & Indus., 149 Wn. App. 799, 806, 207 P.3d 453 (2009).

“In a WISHA appeal, we review the Board’s decision directly based on the record before 

the Board.” Potelco, Inc. v. Dep’t of Labor & Indus., 191 Wn. App. 9, 21, 361 P.3d 767 (2015). 

“And we review the Board’s findings of fact to determine whether they are supported by 

substantial evidence . . . as a whole and whether those findings support the conclusions of law.” 

Potelco, 191 Wn. App. at 21. “The Board’s findings of fact are conclusive if substantial evidence 

supports them.” Potelco, 191 Wn. App. at 21. “‘Substantial evidence is evidence in sufficient 
No. 52837-1-II

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quantum to persuade a fair-minded person of the truth of the declared premises.’” Potelco, 191 

Wn. App. at 21-22 (internal quotation marks omitted) (quoting Pilchuck Contractors, Inc. v. Dep’t 

of Labor & Indus., 170 Wn. App. 514, 517, 286 P.3d 383 (2012)). “Under the substantial evidence 

standard of review, our review is limited to the examination of the record and we will not reweigh 

the evidence.” Potelco, 191 Wn. App. at 22. “Unchallenged findings of fact are verities on 

appeal.” Potelco, 191 Wn. App. at 22.

“We give substantial weight to an agency’s interpretation within its area of expertise, and 

we will uphold that interpretation if it is a plausible construction of the regulation and not contrary 

to the legislative intent.” Potelco, 191 Wn. App. at 22.

II. NON-DELEGABLE DUTY

Staffmark argues that it did not create the hazard, control the hazard, or have any 

responsibility to correct the hazard. The Department argues this this claim is not supported by the 

facts. We hold that Staffmark, as an employer, owed Strumsky a non-delegable duty to comply 

with WISHA regulations.

RCW 49.17.020(4) defines an “employer” as any firm that “engages in any business, 

industry, profession, or activity in this state and employs one or more employees . . . .” All 

employers have a non-delegable duty to protect their employers under both WISHA. RCW 

49.17.060; Afoa v. Port of Seattle, 176 Wn.2d 460, 470-71, 296 P.3d 800 (2013). “[I]t is settled 

law that jobsite owners have a specific duty to comply with WISHA regulations if they retain 

control over the manner and instrumentalities of work being done on the jobsite.” Afoa, 176 Wn.2d 

at 472. “[T]his duty extends to all workers on the jobsite that may be harmed by WISHA 

violations.” Afoa, 176 Wn.2d at 472.
No. 52837-1-II

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Here, Staffmark failed to protect Strumsky from the hazard of operating a forklift 

improperly because it did not ensure that he understood and completed the process for forklift 

operation certification before operating a forklift at the jobsite. Accordingly, Staffmark, as an 

employer, owed Strumsky a non-delegable duty to comply with WISHA regulations.

III. STAFFMARK IS AN EMPLOYER UNDER WISHA

Staffmark argues that it was not an “employer” for purposes of WISHA and thus, it cannot 

be held liable as a joint employer under the economic realities test for violations committed by 

Strumsky because it lacked sufficient control over the workers and the worksite and did not create 

or control the hazard. Thus, Staffmark claims that the Board’s decision is not supported by 

substantial evidence and must be reversed. The Department responds that Staffmark is not excused 

from complying with safety requirements because they were the primary employer who leased its 

employee to Expeditors. Br. of Resp. at 14-15. We hold that the Board properly determined that

under the economic realities test, Staffmark is liable as a joint employer under WISHA.

Under WISHA, employers are responsible for the safety and health of their employees. 

RCW 49.17.060. Courts interpret WISHA liberally to provide wide protection to workers. Frank 

Coluccio Const. Co. v. Dep’t of Labor & Indus., 181 Wn. App. 25, 36, 329 P.3d 91 (2014). Under 

multi-employee worksite liability, employers have a specific duty to comply with WISHA 

regulations, which extends “to all employees” who may be harmed by an employer’s violation of 

the WISHA regulations. Afoa, 176 Wn.2d at 471-72. Therefore, to advance WISHA’s safety 

objectives, the Department may cite multiple employers for violating workplace safety standards. 

Afoa, 176 Wn.2d at 472. “Washington courts look to federal cases interpreting the Occupational 
No. 52837-1-II

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Safety and Health Act of 1970 (OSHA)5as persuasive authority for how to apply the provisions 

of WISHA because WISHA parallels OSHA.” Potelco, 191 Wn. App. at 30 (citing Lee Cook 

Trucking & Logging v. Dep’t of Labor & Indus., 109 Wn. App. 471, 478, 36 P.3d 558 (2001)).

“When there is a WISHA violation involving leased or temporary employees, the Board 

uses the ‘economic realities test’ to determine which employer should be issued the WISHA 

citation.” Potelco, 191 Wn. App. at 30. The economic realities test requires the Board to analyze:

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.

Potelco, 191 Wn. App. at 31 (quoting In re Skills Res. Training Ctr., No. 95 W253, 1997 WL 

593888, at *4 (Wash. Bd. of Indus. Ins. Appeals Aug. 5, 1997)). The key question is whether the 

employer has the right to control the worker. Potelco, 191 Wn. App. at 31. That is the only 

disputed portion of the economic realities test at issue in this case.

Staffmark argues that the Board improperly concluded that Staffmark controlled the 

workers. We disagree.

 

5

29 U.S.C. § 651.
No. 52837-1-II

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As to whether Staffmark, as the alleged employer, has the power to control the workers, 

Staffmark retained the authority to discipline or terminate an employee because Johnson had the 

ultimate authority to discipline or terminate Staffmark employees who were not meeting client 

standards. Johnson could also reassign employees who did not “fit in with [a] particular work 

group” to another client. CP at 1081. Thus, because Staffmark had the power to control the 

workers, Staffmark was the employer.

The Board considered all of the factors of the economic realities test and properly 

concluded that Staffmark was a joint employer. Accordingly, we agree with the Board and hold 

that that Staffmark was a joint employer under the economic realities test because it had the power 

to control the workers and we affirm the Board’s order.

IV. EMPLOYER KNOWLEDGE

Staffmark argues that the Board erred by determining that Staffmark had constructive 

knowledge that Strumsky was operating the forklift in plain view because the forklift trainings 

were for short periods of time and away from where other employees customarily worked. The 

Department argues that substantial evidence shows that Staffmark knew or should have known 

that Strumsky was operating a forklift without being trained because he operated the forklift in 

plain view of other employees in the warehouse. We hold that substantial evidence supports the 

Board’s finding that Staffmark had constructive knowledge of the violations.

“Under WISHA, an employer has a general duty to employees to provide employees a 

place of employment free from recognized hazards that are causing or likely to cause serious injury 

or death and a specific duty to comply with the rules, regulations, and orders promulgated under 

WISHA.” Pro-Active Home Builders, Inc. v. Dep’t of Labor & Indus., 7 Wn. App. 2d 10, 16-17, 
No. 52837-1-II

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432 P.3d 404 (2019). “‘RCW 49.17.180(2) mandates the assessment of a penalty against an 

employer when a proven violation is serious.” Pro-Active Home Builders, 7 Wn. App. 2d at 17

(internal quotation marks omitted) (quoting J.E. Dunn Northwest, Inc. v. Dep’t of Labor & Indus., 

139 Wn. App. 35, 44, 156 P.3d 250 (2007)).

A “serious” violation of a WISHA regulation is defined as follows:

[A] serious violation shall be deemed to exist in a workplace if there is a substantial 

probability that death or serious physical harm could result from a condition which 

exists, or from one or more practices, means, methods, operations, or processes 

which have been adopted or are in use in such workplace, unless the employer did 

not, and could not with the exercise of reasonable diligence, know of the presence 

of the violation.

RCW 49.17.180(6).6

“When alleging a violation of WISHA regulations against an employers, the Department 

bears the initial burden of proving the existence of that violation.” Pro-Active Home Builders, 7 

Wn. App. 2d at 17. “When an alleged violation is designated as ‘serious,’ the Department bears 

the burden of proving not only the existence of the elements of the violation itself, but also the 

existence of those additional elements of a ‘serious’ violation enumerated in RCW 49.17.180(6).” 

Pro-Active Home Builders, 7 Wn. App. 2d at 17 (citing J.E. Dunn, 139 Wn. App. at 44).

 

6 The legislature amended RCW 49.17.180 in 2018. LAWS OF 2018, ch. 128 § 1. Because these 

amendments are not relevant here, we cite to the current version of this statute.
No. 52837-1-II

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Accordingly, to establish its prima facie case in regard to a serious violation of a WISHA 

regulation, the Department must prove each of the following elements:

(1) the cited standard applies; (2) the requirements of the standard were not met; 

(3) employees were exposed to, or had access to, the violative condition; (4) the 

employer knew or, through the exercise of reasonable diligence, could have known 

of the violative condition; and (5) there is a substantial probability that death or 

serious physical harm could result from the violative condition.

Pro-Active Home Builders, 7 Wn. App. 2d at 17-18 (internal quotation marks omitted) (quoting, 

Washington Cedar & Supply Co. v. Dep’t of Labor & Indus., 119 Wn. App. 906, 914, 83 P.3d 

1012 (2003)). Staffmark challenges the knowledge element. Br. of App. at 9, 22.

“An employer’s knowledge can be actual or constructive, and common knowledge can be 

used to establish that a hazard is recognized.” Pro-Active Home Builders, 7 Wn. App. 2d at 18.

Here, the Board found that “Staffmark at least had constructive knowledge that Mr. 

Strumsky was operating the forklift in plain view on numerous occasions, and a Staffmark lead 

was aware he was being trained as a forklift driver.” CP at 68. We, therefore, examine whether 

substantial evidence shows constructive knowledge. Potelco, 191 Wn. App. at 21

“In general, constructive knowledge is established where the employer in the ‘exercise of 

reasonable diligence’ could have become aware of the condition.” Pro-Active Home Builders, 7 

Wn. App. 2d at 18 (quoting RCW 49.17.180(6)). “‘Reasonable diligence involves several factors, 

including an employer’s obligation to inspect the work area, to anticipate hazards to which 

employees may be exposed, and to take measures to prevent the occurrence.’” Pro-Active Home 

Builders, 7 Wn. App. 2d at 18 (internal quotation marks omitted) (quoting Erection Co., Inc. v. 

Dep’t of Labor & Indus., 160 Wn. App. 194, 206-07, 248 P.3d 1085 (2011)). “Constructive 

knowledge may be demonstrated by the Department in a number of ways, including evidence 
No. 52837-1-II

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showing that the violative condition was readily observable or in a conspicuous location in the 

area of the employer’s crews.” Pro-Active Home Builders, 7 Wn. App. 2d at 18.

The record shows that Strumsky was trained in an open warehouse where it was possible 

for other employees and supervisors to see him operate the forklift without proper training. CP at 

1150-51. In the month leading up to the accident, Strumsky operated the forklift “five or six 

times.” CP at 1150. Each session was “[a]bout an hour.” CP at 1151. The Staffmark lead during 

Strumsky’s shift, Thysell, discussed the possibility of training Strumsky with Maghanoy. CP at 

1119. When Strumsky was asked if he believed Thysell saw him, he said, “Yeah. Yeah. He was 

on the forklift pretty much the whole day. I mean, it would be kind of shocking if he didn’t see 

me.” CP at 1147.

Based on these facts, the violative conditions as set forth in the Department’s WISHA 

violations 1-1a and 1-1b were readily observable to Staffmark. Staffmark could have become 

aware of the conditions with the “exercise of reasonable diligence.” RCW 49.17.180(6). Thus, 

substantial evidence supports the Board’s finding that Staffmark had constructive knowledge of 

both violations.

Given the legislature’s expansive definitions of “employer” and “employee,” holding 

Staffmark liable as a joint employer on this record supports the legislature’s directive to establish 

“safe and healthful working conditions.” RCW 49.17.010, .020.
No. 52837-1-II

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CONCLUSION

We affirm the superior court’s judgment and order affirming the Board’s order.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

SUTTON, J.

We concur:

MAXA, C.J.

MELNICK, J.