OSHA Controlling Employer: New Decision

Gary Auman

Gary Auman (www.dmfdayton.com) is a Partner in the law firm of Auman, Mahan & Furry in Dayton, Ohio. He graduated with an electrical engineering degree from the University of Louisville in 1969, and a law degree from The Ohio State University in 1976. Since then, his practice has focused on defending employers in workers’ compensation and OSHA cases. In 2002, Mr. Auman was awarded the Distinguished Service to Safety Award by the National Safety Council. He has worked with OSHA in its development of safety and health standards, and he has defended OSHA cases in several federal appellate courts. Mr. Auman also represents 4 national and regional trade associations in the construction industry. He can be reached at gwa@dmfdayton.com.

October 1, 2009

The Occupational Safety and Health Review Commission (OSHRC) has just issued its decision on review of the Summit Contractors case. The Commission’s previous decision was overturned by the Eighth Circuit Court of Appeals in its decision in March 2009.1 The appellate court remanded the case to the OSHRC to review its prior ruling.

In its recent decision issued on July 27, 2009, the OSHRC reversed its prior decision and affirmed the serious safety citation issued to Summit Contractors under the controlling employer policy of OSHA. In reaching its decision, the OSHRC adopted the language of the appellate court that Section 1910.12(a) of the Code of Federal Regulations “is unambiguous in that it does not preclude OSHA from issuing citations to employers for violations when their own employees are not exposed to any hazards related to the violations.”2

Of concern are some unanswered questions. To address these we must first look at the facts in Summit. Summit Contractors had a contract with the owner of the property and with its subcontractor, All Phase Construction, Inc. In the contract with the owner, Summit was assigned “exclusive authority to manage, direct, and control” the construction. Summit’s subcontract with All Phase indicated that “control of the Work Schedule, use of the site, and coordination of all on-site personnel will be performed under the complete direction of” Summit’s staff. The subcontract also provided different remedies for Summit to exercise against All Phase for any failure to comply with OSHA. Finally, Summit had four of its own employees on the site at the time of the inspection.

Initially, the OSHRC concluded that Summit could not be held responsible for the employees of All Phase because Summit’s employees, even though they were on site, were not exposed to the hazards to which All Phase employees were exposed. The OSHRC also concluded that Section 1910.12(a) of the Code of Federal Regulations only required employers in the construction industry to be responsible for the safety of their own employees and that OSHA could not establish a policy to abrogate that limitation. Following the decision of the appellate court, the OSHRC concluded that the controlling employer has responsibility for exposure to the hazard of workers employed by other companies, even if its own employees were not exposed.

The appellate court concluded that under Section 1910.12(a), 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.”3 The OSHRC concluded in its decision on remand that the Secretary’s controlling employer citation policy provides this level of protection. It defines a controlling employer as one who has the general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.

In the Summit case the OSHRC found that Summit’s contract assigned it the exclusive authority to manage, direct, and control the construction, as well as the responsibility to comply with safety laws and to take safety precautions for all employees on site. The OSHRC also found that Summit had required corrective action regarding safety violations by All Phase employees in the past. In the end, because Summit admitted that it had knowledge of the cited conditions, it failed to take reasonable steps and measures necessary to obtain abatement.

It appears that the decision of the OSHRC, when combined with that of the Eighth Circuit, has tightened the concept of the controlling employer and made it, more than ever, a matter of contract. What do we take from these decisions?

First, if you are a general contractor or construction manager on a project, carefully read the language of your contract to determine your responsibility for safety on the job. Clearly, if you have taken any responsibility to ensure safety on the jobsite in your contract, you will be held accountable by OSHA as long as you have any employees on the job site. What remains unanswered is whether, depending on the strength of the contract language, you can be held responsible for always having someone on the jobsite to ensure safety. In other words, can you take on a level of responsibility in your contract with the owner or the general contractor or the construction manager that makes you responsible for ensuring that any contractor’s employees are not exposed to hazards at any time, whether or not you have someone on the site?

Neither decision goes this far, but it may be only a short step. The lesson to be learned is: Know what responsibility you are assuming for safety before you sign a contract. Try to avoid unreasonable extensions of responsibility for safety. Be sure that if you have undertaken the responsibility for ensuring the safety of other companies’ employees, you have also been given the necessary authority.

Second, if you are a subcontractor, this decision can impact you if you have language in your subcontract about your responsibility for the safety of the employees of subcontractors who may work under you. Again, know what you are signing and what responsibility you are assuming when you sign the contract. If you have taken on a site safety responsibility for your work area and if you have other subs working for you, consider having someone on site to ensure safety of all employees for whom you may have some responsibility.

Third, if you are a subcontractor, know that the fact that the general has controlling employer responsibility DOES NOT relieve you of responsibility for the safety of your own employees, whether or not you created the hazard to which they may be exposed.

We are all concerned about safety; therefore, this issue should not be about getting out of ensuring safety on the jobsite, but about knowing your safety responsibilities and ensuring you have the tools to carry them out. So, when you negotiate your contracts, give safety responsibility more than a passing glance. Remember, this may not be just about OSHA; these regulatory responsibilities can be used to determine your liability in other forums.

Notes

  1. Solis v. Summit Contractors, Inc., 558 F.3d 815 (8th Cir. 2009).
  2. Summit, 558 F.3d at 825.
  3. Summit, 558 F.3d at 818.

Disclaimer: This discussion is generalized in nature and should not be considered a substitute for professional advice. Readers are advised to contact counsel before embarking on any of the options discussed in this article.