On February 26, 2009, in Secretary of Labor v. Summit Contractors, Inc., 2009 U.S. App. LEXIS 3755, the United States Court of Appeals for the Eighth Circuit overturned the decision of the Occupational Safety and Health Review Commission (“OSHRC”) and held that a controlling employer can be cited for OSHA violations even when it did not create the hazard and none of its employees were even exposed to the hazard giving rise to the citation.
Summit Contractors (Summit) was the general contractor for a construction project in Little Rock, Arkansas. It subcontracted the entire project, and therefore had only 4 employees on the site: a project superintendent and three assistant superintendents. All Phase Construction (All Phase) was the subcontractor responsible for the exterior brick masonry work. On two or three occasions Summit’s project superintendent observed All Phase employees operating without personal fall protection on scaffolds lacking guard rails. The superintendent advised All Phase to correct the problems; however, when the All Phase employees moved the scaffold to another location, they would again work without fall protection and guardrails. None of Summit’s employees were exposed to the hazard.
An OSHA Compliance Safety and Health Officer observed All Phase employees working on scaffolds over ten feet above ground without fall protection or guardrails. In addition to citing All Phase, the officer issued a citation to Summit, based on OSHA’s controlling employer citation policy. That policy provides that OSHA may issue citations to general contractors at construction sites who have the ability to prevent or abate hazardous conditions created by subcontractors through the reasonable exercise of supervisory authority, regardless of whether the general contractor created the hazard or whether the general contractor’s own employees were exposed to the hazard.
The OSHRC had held that the multi-employer policy violated 29 C.F.R. §1910.12(a), which provides:
The standards prescribed in part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. 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 prescribed in this paragraph.
The Eighth Circuit concluded that the plain language of the regulation does not preclude the Secretary of Labor’s controlling employer citation policy and therefore the Commission abused its discretion in determining that the controlling employer citation policy conflicted with § 1910.12(a).
As the Eighth Circuit acknowledged, the controlling employer citation policy places an enormous responsibility on a general contractor to monitor all employees and all aspects of the worksite. “Control” resulting to exposure to a citation under the policy can be established by contract, or by the exercise of control in practice. Even in the absence of explicit contract provisions granting the right to control safety, or where the contract says the employer does not have such a right, an employer may still be found to be a controlling employer, based on a combination of contractual rights that give it broad responsibility at the site involving almost all aspects of the job. Responsibilities of key significance in this analysis include the authority to resolve disputes between subcontractors and set schedules and determine construction sequencing, because of the likelihood that these matters may affect safety.
It is of small consolation that the standard OSHA will use to determine if the controlling employer exercised reasonable care to prevent and detect violations on the site is a lower one than that required of an employer with respect to protecting its own employees. How frequently and closely a controlling employer must inspect to meet its standard of reasonable care will depend upon the scale of the project, the nature and pace of the work, and how much the controlling employer knows about the safety history and practices of the employer it controls. More frequent inspections are needed if the controlling employer knows that the other employer has a history of non-compliance, or, at the beginning of a project if the controlling employer has no knowledge of the other employer’s compliance history.
Challenges to OSHA’s controlling employer citation policy can be expected to continue. The two to one decision in Summit was a narrow one and it included a vigorous dissenting opinion. The decision did not evaluate OSHA’s overall multi-employer citation policy and, although the issue was not raised by the parties, the Court suggested that OSHA may need to submit the policy to the informal rulemaking process for continued use in enforcement. Nevertheless, at the present time, general contractors and construction managers must be vigilant in their supervision of the worksite to avoid liability for the safety infractions of other employers.
-Joan Fletcher
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