Eighth Circuit Sides with OSHA Regarding Multi-Employer Citation Policy

On February 26, 2009, the U.S. Court of Appeals for the Eighth Circuit upheld OSHA’s multi-employer worksite policy for controlling employers. Solis v. Summit Contractors, Inc., No. 07-2191 (8th Cir. Feb. 26, 2009). The decision vacates an Occupational Safety and Health Review Commission (“Review Commission”) ruling which held that under 29 C.F.R. § 1910.12(a) OSHA could not cite a general contractor that neither created nor exposed its employees to a hazard.

At issue was whether OSHA’s multi-employer worksite policy was applicable to general contractors under 29 C.F.R. § 1910.12(a). In reaching its conclusion, the majority found that the phrase “of each of his employees” qualified “places of employment” so that a contractor was required to protect the places of employment where it has employees. Thus, under the majority’s interpretation, a general contractor would be required to protect its own employees as well as the places where the general contractor has employees (i.e., the entire job site). The majority rejected Summit Contractor’s contrary interpretation that 29 C.F.R. § 1910.12 only requires an employer to protect its own employees and not those of a subcontractor. The majority also rejected Summit Contractor’s challenge that the policy was ill-conceived and its contention that the controlling employer citation policy expands the terms “employer” and “employee” beyond the Supreme Court’s direction in Nationwide Mutual Insurance v. Darden.

Judge C. Arlen Beam dissented. Judge Beam disagreed that the regulation was sufficiently ambiguous as to require deference to the Secretary of Labor. Under his analysis, the phrase “of each of his employees” actually limits both “employment” and “places of employment.” Thus, under Judge Beam’s interpretation, a general contractor would only be required to protect its own employees and the places of employment of its own employees engaged in construction work.

The full impact of this decision is not known. While the Secretary touts the decision as a success for OSHA, the victory may be short-lived. The majority’s decision is narrow and could be interpreted to apply only in situations where a general contractor has employees on site. Moreover, the majority questioned whether OSHA may be required to engage in formal notice-and-comment rulemaking on its multi-employer policy. The decision also conflicts with dicta in the U.S. Court of Appeals for the District of Columbia Circuit’s decision in Anthony Crane Rental, Inc. v. Reich, which questioned whether the multi-employer doctrine is consistent with OSHA’s construction regulation.

Summit Contractors may file a petition for a writ of certiori with the U. S. Supreme Court, which would be due 90 days from the date of judgment on February 26, 2009. To date, the U.S. Court of Appeals for the Second, Sixth, Seventh, Eight, Ninth, and Tenth Circuits have accepted OSHA’s multi-employer citation policy and only the Fifth Circuit has rejected it.