• The Summit Decision: Limiting General Contractors' Liability under OSHA for Safety Violations of Its Subcontractors at Multi-Employer Construction Sites
  • March 25, 2009 | Author: Elizabeth A. Underwood
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Philadelphia Office
  • In Secretary of Labor v. Summit Contractors, Inc., 2007 OSAHRC LEXIS 34, Docket No. 03-1622 (April 27, 2007), the Occupation Safety and Health Review Commission limited the Secretary of Labor's ability to issue citations for violations of OSHA construction safety standards to a "controlling" employer at a multi-employer worksite. The multi-employer worksite doctrine previously allowed OSHA citations to be issued to general contractors for the safety violations of their subcontractors under the theory that the general contractor acted as a controlling employer over the entire construction site. The ruling in Summit, which is currently on appeal to the United States Court of Appeals for the Eight Circuit, overturns the previously applied multi-employer worksite doctrine and holds that employers at a multi-employer construction work site can only be cited for an OSHA violation if they either (1) expose their own employees to the hazard or (2) create the hazard. If these factors are not met, the general contractor cannot be cited as a "controlling employer."

    In the Summit case, Summit was the general contractor overseeing the construction of a college dormitory in Little Rock, Arkansas. Summit subcontracted the exterior brick masonry work to All Phase Construction, Inc. The masonry work required the use of scaffolding by All Phase employees. A Compliance Safety and Health Officer ("CSHO") observed All Phase employees working on scaffolding without fall protection, in violation of OSHA regulations. Summit's safety officer informed the CSHO that he had previously observed All Phase employees working without fall protection and had instructed All Phase to comply with fall protection regulations; however, each time the scaffolding was moved to a different area, fall protection standards lapsed. It was undisputed that no employees of Summit were exposed to the hazard (working on scaffolding without fall protection) and Summit did not create the hazard.

    Summit was issued a citation by OSHA for violation of contraction safety standards regarding fall protection as a "controlling employer" in accordance with the agency's multi-employer worksite doctrine. The multi-employer worksite doctrine stated that not only exposing employers should be issued citations, but citations should also be assessed to "creating, controlling and correcting employers 'whether or not their own employees are exposed'... ." OSHA Field Inspection Reference Manual § V.C.6 (Sept. 26, 1994). Namely, on a multi-employer construction site, a general contractor could be cited for the safety violations of its subcontractors.

    Summit appealed the citation, arguing that 29 C.F.R. § 1910.12(a) expressly limits the Secretary's ability to issue citations to "controlling employers" under its multi-employer doctrine, thus making the doctrine invalid as to a general contractor who neither created nor had employees exposed to the cited hazard. The language of the regulation in question states, "[E]ach 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." Summit argued that, by its plain language, §29 CFR §1910.12(a) applies only to the employer whose employees were subjected to the dangerous condition. Summit argued that, in its case, none of its own employees were exposed to the hazard and Summit did not create the hazard. Summit further argued that the multi-employer citation policy promulgated by OSHA as expressed in OSHA directive CPL 2-0.124 (multi-employer citation policy) was not enforceable because it was contrary to the plain language of 29 CFR §1910.12(a).

    The Commission agreed with Summit and vacated the citation. Generally, the Commission discussed that a government agency cannot promulgate policies and directives which exceed the agency's regulatory authority, even if that regulatory authority was originally limited by the agency itself. The Commission held that the plain language of 29 C.F.R. § 1910.12(a) prevents the enforcement of the current multi-employer citation policy to "controlling" employers. The agency, particularly given its changing policy directives over the years as to citations to "controlling employers" at a multi-employer worksite, was bound to the limits on its regulatory authority set forth in 29 C.F.R. §1910.12(a) and could not issue policies or directives in conflict with its authority. This holding, if upheld by the Eight Circuit, is consistent with the Pennsylvania Supreme Court decision in Leonard v. PennDOT, 771 A.2d 1238, 1240 (Pa. 2001). The Pennsylvania Supreme Court in Leonard, upholding the lower court ruling permitting a contractor to fully delegate safety responsibilities to a subcontractor, stated that the Commonwealth Court's decision was "in accord with established law that a contractor is not liable for injuries resulting from work entrusted to a subcontractor."

    The Summit decision, if upheld, will strengthen the independent contractor defense by preventing litigants from claiming that a general contractor who did not create or expose its own employees to a cited hazard violated OSHA, even if it was aware of the existence of the cited hazard. The ruling will help to preclude litigants from asserting liability on the part of a general contractor for OSHA safety violations of its subcontractors.