Multi-employer worksites often cause headaches when it comes to OSHA enforcement activities. OSHA has a well-established doctrine, which creates four categories of employers who can be cited: the controlling employer (the “general contractor,” in most circumstances), the creating employer (the employer whose worker creates the hazardous condition or engages in an unsafe act), the exposing employer (the employer(s) that have workers exposed to the hazard), and the correcting employer (the employer who is by contract or practice considered responsible for correcting any violative conditions). Sometimes confusion arises when the OSHA inspector assumes that a worker is employed by one company (perhaps due to the color shirt he is wearing when viewed from a distance) and never bothers to sort out the identification issues. In many cases I have handled, when we receive copies of OSHA’s photographs from an inspection scene, we learn for the first time that the person depicted in fact works for another contractor on the worksite.
CITABLE CONDITIONS
Under OSHA’s policy (CPL 02-00-124, 1999), even if your company has not created the citable conditions, you can still be cited and fined if you (1) knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition, and (2) failed to take steps consistent with its authority to protect your employees. On the other hand, an employer who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them, can be cited even if it had no direct involvement with creating or condoning the violation. Control can be established by contract or, in the absence of explicit contractual provisions, by the exercise of control in practice.
RECENT DECISION
A recent decision by the Occupational Safety & Health Review Commission, Secretary of Labor v. Quinlan Enterprises (OSHRC, September 26, 2013) points out yet another twist on multi-employer worksites: determining who is actually the employer of workers who violate OSHA standards. In that case, OSHA had issued three citations to Quinlan, with total penalties of over $11,000. After a hearing before an Administrative Law Judge (ALJ), the judge vacated one citation but sustained the others, and Quinlan appealed, challenging the merits of both citations. The sustained citations involved failure to use fall protection as required by 29 CFR 1926.501, and for using a ladder for purposes other than those for which the ladder was designed, an alleged violation of 1926.1053.
Quinlan was a sole proprietorship, which had four employees working on a steel erection project at a high school in Georgia, but it was not the general contractor and was, in fact, a subcontractor to yet another company hired under contract to do the steel erection work.
At trial, its main argument was that the two workers exposed to the cited conditions were not, at the time, working for Quinlan and were not being paid by Quinlan for the work. The work that the employees were engaged in when cited was not steel erection, which was all that Quinlan had been hired to do on the project. Quinlan argued that the workers “on their own initiative and following pressure from the general contractor (Kinney Construction), abandoned their workstations for Quinlan and proceeded to do work for the general contractor” … work that was not within the scope of Quinlan’s work on the jobsite. The appeal came after the ALJ dismissed this argument in a footnote to her decision, finding it had “no merit.”
In this case, during an inspection conference with Kinney, the inspector showed photos and Kinney identified some workers as its own employees, while it said others worked for Quinlan and for a third masonry subcontractor. Kinney identified the worker who was not using proper fall protection as Quinlan’s foreman and said that the man had been directing other employees during the week preceding the inspection. Under OSHA case law, an employee who has been delegated authority over another employee, even if only temporarily, is considered to be a supervisor for purposes of imputing knowledge to the employer.
The OSHRC reversed the ALJ’s holding, and remanded the case for further consideration, because it could not determine which of the assertions were not supported by evidence in the case, since the judge did not fully explore this in her decision. The Commission also pointed to a recent US Court of Appeals, 11th Circuit, decision, which held that where OSHA seeks to establish that an employer had knowledge of misconduct by a supervisor, it must do more than merely point to the misconduct itself—it must also put forth evidence of lax safety standards.
In Quinlan’s case, while the company “leadman” had personally engaged in the violative conduct, the agency had not necessarily born the burden of providing that this conduct was foreseeable by Quinlan or that he was working for Quinlan’s benefit at the time. Instead, the ALJ incorrectly reversed the burden of proof and required Quinlan to show that it had a thorough safety program which was adequately enforced and communicated, and that the violative conduct was unforeseeable.
In fact, the burden is on the agency to show that any agent of management’s conduct was reasonably foreseeable, and that Quinlan had employed the exposed workers. Where, as here, the general contractor was actually directing the work of another company’s workers, the workers performed work for the GC’s benefit, and the GC was paying the workers, the judge should, on remand, remove liability from Quinlan since it was not directly involved with supervising the workers, was not compensating them for the work at issue, and had no knowledge of the citable actions and conditions. ■
About the Author:
Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employers in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
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Modern Contractor Solutions, November 2013
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