OSHA & the Construction Industry
Contact our staff OSHA expert Anthony Fuschillo for all of your OSHA related cases and questions.
Occupational Safety and Health Review Commission restores broad “controlling employer” liability in the construction industry
John Alden, Randall D. Avram and Louis W. Doherty
August 26, 2010
Workplace safety violations at construction worksites raise special issues of liability under the Occupational Safety and Health Act because the employees of multiple employers often work in close proximity. For a number of years, the Occupational Safety and Health Administration (“OSHA”) used the multi-employer worksite doctrine to issue citations for safety violations to construction employers exercising general supervisory authority over a construction worksite (the “controlling employer”), even when the controlling employer did not create the safety hazard and its own employees were not exposed to any hazard. Under the multi-employer worksite doctrine, general contractors on construction sites were often cited for safety violations caused by subcontractors and affecting only the employees of the subcontractors. In 2007, however, the Occupational Safety and Health Review Commission (“OSHRC”) significantly limited the scope of the multi-employer worksite doctrine in Secretary of Labor v. Summit Contractors, Inc., OSHRC No. 03-1622 (Apr. 27, 2007) (“Summit I”), when it held that OSHA could no longer issue citations to controlling employers that neither created nor exposed their own employees to a violative condition. Summit I was appealed to the Eighth Circuit, and in Solis v. Summit Contractors, Inc., 558 F.3d 815 (8th Cir. 2009), that court restored the broad “controlling employer” element of the multi-employer worksite doctrine as it had traditionally been applied. However, the Solis decision was binding only in states within the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, North Dakota, and South Dakota), and OSHA was free to apply Summit I throughout the rest of the country. That situation has now changed. On August 19, 2010, in Secretary of Labor v. Summit Contractors, Inc., OSHRC No. 05-0839 (Aug. 19, 2010) (“Summit II”), the OSHRC adopted the reasoning of the Solis decision, overruled Summit I, and revived the broad “controlling employer” aspect of the multi-employer worksite doctrine as the binding OSHA enforcement policy nationwide.
The OSHRC’s Decision in Summit II
Summit I, Solis, and Summit II all revolved around the meaning of one OSHA standard: 29 C.F.R. § 1910.12(a), which provides that the construction industry standards—
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.
In Summit I, the OSHRC found that through the words “his employees,” the Secretary of Labor limited an employer’s duties under the construction standards to protecting the employer’s own employees against workplace hazards. The Solis court disagreed, finding that 29 C.F.R. § 1910.12(a) required employers to protect their employees’ (1) employment and (2) places of employment. In Solis, the court interpreted the “places of employment” requirement as creating a duty for construction employers to prevent hazards at all sites where they have employees, whether or not their employees are exposed to the hazard. In Summit II, the OSHRC rejected as myopic the interpretation adopted in Summit I and found that the Solis interpretation gave effect to all of the words in 29 C.F.R. § 1910.12(a), thereby yielding the correct reading of that provision. Accordingly, in Summit II, the OSHRC expressly overruled Summit I and held that 29 C.F.R. § 1910.12(a) did not prevent OSHA from citing an employer under the multi-employer worksite doctrine for hazards on a construction site that the employer controlled, even though the controlling employer did not create the hazard or expose any of its own employees to the hazard.
In Summit II, the OSHRC also rejected the employer’s argument that the United States Supreme Court’s decision in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 316 (1992), precluded OSHA from holding employers responsible for the safety of others’ employees. In Darden, the Supreme Court held that the common-law definition of “employee” controlled when the term was not defined in the applicable statutes. Attempting to apply that holding to its own situation, Summit Contractors, Inc. argued that in holding employers responsible for employees other than their own, the multi-employer worksite doctrine relied on a definition of employee that was more expansive than the common-law definition. The OSHRC disagreed, noting that the Darden test is applicable to only two inquiries under the Occupational Safety and Health Act: (1) whether a cited entity has employees and (2) whether a particular employer has an employment relationship with a particular worker. The OSHRC found that neither of these inquiries is relevant to the "controlling employer" analysis in cases applying the multi-employer worksite doctrine because the lack of an employment relationship between the controlling employer and the exposed employee is presumed.
Practical Implications
Summit II unequivocally restores the multi-employer worksite doctrine to its pre-2007 condition. As a result of Summit II, construction employers once again face potential liability under the Occupational Safety and Health Act for all hazards present on any worksite over which they have control as long as they have at least one of their employees on the site. The Summit II decision is particularly relevant to general contractors because they may be held responsible for hazards created by their subcontractors, even when they did nothing more than select and schedule the subcontractors. Because of the enhanced risk of OSHA citations they now face, construction employers should evaluate their procedures for identifying and correcting potential safety hazards at the construction sites they control. Specifically, general contractors should periodically scan the worksite for obvious safety and health violations. In addition, once a general contractor becomes aware of a hazard, it should immediately take steps to ensure that the hazard is promptly corrected by the appropriate subcontractor.
