In The News:

This article was originally published by the Wisconsin Chapter of the Associated Builders and Contractors in its July 2007 Merit Shop Talk newsletter.

Good News for General Contractors:  Reduced Liability for OSHA Violations of Subs

By Susan C. Sheeran*

A recent decision of the Occupational Health and Safety Review Commission paves the way for fewer OSHA citations against general contractors.  In Secretary of Labor v. Summit Contractors, Inc. (OSHRC No. 03-1622), decided on April 26, 2007, a divided Review Commission held that general contractors cannot be cited as “controlling employers” under the agency’s multi-employer worksite doctrine for safety violations of subcontractors.  This stands to reverse a near 30-year OSHA practice of citing both the subcontractor responsible for the violation as well as the general contractor responsible for supervising the worksite, even when the general contractor had no direct role in the safety violation and had none of its own employees exposed to the hazard.

Under OSHA’s multi-employer worksite doctrine, citations may be issued against contractors that create the safety hazard, expose their own employees to the hazard, have control over the hazard itself, or control the worksite as a whole.  Following this approach, “controlling employers” have been cited routinely alongside the subcontractors actually responsible for the violations.

Summit involved a general contractor for the construction of a college dormitory in Little Rock, Arkansas.  The general contractor employed a job superintendent and three assistant superintendents at the worksite.  The superintendents were responsible for coordinating vendors, scheduling the work of various subcontractors, and ensuring that the subcontractors’ work was being performed according to contract.  When workers of an exterior brick masonry subcontractor failed to use fall-protection gear during work from scaffolds, an OSHA compliance officer observed the violation and cited not only the subcontractor, but the general contractor as well.  The general contractor’s superintendents were present at the worksite at the time, but had no direct part in the violation and had not been personally exposed to the hazard.

The focus of Summit’s legal wrangling was 29 CFR § 1910.12(a), the statute upon which OSHA has based its multi-employer worksite doctrine.  The plain language of § 1910.12(a) is that “Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards . . .” (emphasis added).  The Review Commission relied on this wording to hold that § 1910.12(a) is not intended to extend liability beyond situations where general contractors have some direct connection to the safety violation.

Over the last three decades, the multi-employer worksite doctrine has been inconsistently applied, leading many to question the propriety of the rule under § 1910.12(a).  As the Review Commission noted, “The Commission must give effect to the plain language of the regulation, especially in the face of [OSHA’s] inconsistent doctrine.”  Some observers note that the doctrine seems more reasonable in situations where a small worksite or special circumstances make it such that a general contractor can easily exercise control over the safety of an entire site.  In other situations, however, where large worksites or an increased number of subcontractors and workers make it more difficult to supervise safety effectively, the rule has been criticized for placing fault where none exists.  Finding OSHA’s reliance on the doctrine to be “impermissible given the contrary language of [§ 1910.12(a)],” the Review Commission vacated the OSHA citation against the Summit general contractor.

General contractors should note that while Summit stands to limit their liability when exercising merely a supervisory role over a worksite at which an OSHA violation occurs, general contractors may still face liability when they have a direct role in the violation or expose their own workers to the safety hazard.  This means that every contractor, general or sub, continues to be responsible for worksite safety and OSHA compliance with respect to their own work and employees.  Accordingly, Summit should not lead general contractors to abandon worksite safety programs.  As always, safety should remain a priority for all contractors and employees.

Although OSHA has appealed the Review Commission’s decision, Summit will apply to any enforcement action that comes before the Review Commission unless and until the case is overturned.  However, because OSHA is not formally required to adjust its policies to the Review Commission’s decisions, Summit may not impact how OSHA compliance officers operate in the field.  Regardless of the outcome of its appeal, OSHA may also seek to amend the language of § 1910.12(a) to allow citation of general contractors consistent with its current practice under the multi-employer worksite doctrine.  Until this issue is ultimately resolved through litigation or legislation, any general contractors cited under the doctrine may want to seek legal advice before deciding whether or not to contest the citation.

__________________________________

* Acknowledgement:  This article was written with the assistance of James W. Fash, law clerk at Melli, Walker, Pease & Ruhly, S.C.

Go to Archived News

This page is intended to provide general information about various legal issues and developments.  It is not intended to be a complete list of all recent legal developments.  This page does not constitute legal advice and should not be relied upon in dealing with specific factual or legal matters.