• Occupational Safety and Health Review Commission Limits "Controlling Employer" Liability in the Construction Industry
  • June 14, 2007 | Authors: G. Paris Sykes; John W. Alden; Laurel Payne Landon; Randall D. Avram; Louis W. Doherty
  • Law Firms: Kilpatrick Stockton LLP - Atlanta Office ; Kilpatrick Stockton LLP - Augusta Office ; Kilpatrick Stockton LLP - Raleigh Office ; Kilpatrick Stockton LLP - Winston-Salem Office
  • Since 1994, the Occupational Safety and Health Administration (“OSHA”), through its multi-employer worksite policy, has issued citations not only to construction employers that exposed their employees to health and safety hazards (“exposing employers”), but also to employers that created the hazardous condition (“creating employer”), employers that had the ability to correct the hazardous condition (“correcting employer”), and employers that had “general supervisory authority over the [construction] worksite” (“controlling employer”). However, on April 27, 2007, the Occupational Safety and Health Review Commission (“OSHRC”) significantly limited the scope of the multi-employer worksite doctrine and “controlling employer” liability in Secretary of Labor v. Summit Contractors, Inc., OSHRC No. 03-1622 (Apr. 27, 2007) (“Summit Contractors”). In this 2-to-1 decision, the OSHRC held that OSHA may no longer issue citations for construction-industry-standard violations against controlling employers that neither created the violative condition nor exposed their employees to hazards.

     

    Secretary of Labor v. Summit Contractors Decision

     

    In Summit Contractors, OSHA issued a citation to Summit Contractors, Inc. (“Summit”), the general contractor on a dormitory construction project, for a violation of a fall-protection standard. Although one of Summit’s subcontractors created the hazard and no Summit employees were exposed to the hazard, the Secretary of Labor (the “Secretary”) argued that Summit was liable as a controlling employer in accordance with OSHA’s multi-employer worksite doctrine. Summit challenged the citation and the Secretary’s application of the multi-employer worksite doctrine to controlling employers that have contractual authority over subcontractors.

     

    The decision revolved around the meaning of 29 C.F.R. § 1910.12(a), which adopts the construction industry standards and provides that -- [t]he standards prescribed in Part 1926 of this chapter…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 interpreting this regulation, the two members of the OSHRC who formed the majority in the Summit Contractors decision reached their conclusion for different reasons. Chairman Railton found persuasive the fact that while OSHA has constantly varied the multi-employer worksite doctrine, Section 1910.12(a) has not changed since it was adopted in 1971. Commissioner Thomas, on the other hand, found the Secretary’s failure to adopt the “controlling employer” concept from the Construction Safety Act when adopting that Act’s standards in 1971 and the Secretary’s failure to direct field personnel to cite “non-creating, non-exposing, controlling employers at a multi-employer construction worksite” in the original enforcement guidelines to be dispositive of the Secretary’s intent in adopting Section 1910.12(a). Despite taking different approaches, Chairman Railton and Commissioner Thompson both concluded that by the terms of Section 1910.12(a), the duty of a construction industry employer under that regulation, and thereby under Part 1926, is owed only to its own employees. Accordingly, the OSHRC rejected the Secretary’s argument that Section 1910.12(a) permits a broad class of employers, including those whose employees are not exposed to the hazard, to be cited and held that Section 1910.12(a) precluded the Secretary from enforcing the multi-employer worksite policy against Summit -- a noncreating, nonexposing controlling employer.

     

    Practical Implications

     

    By finding that an employer’s duty under Section 1910.12(a) is owed solely to its own employees, the OSHRC substantially limited the scope of the multi-employer doctrine in the construction industry, but the multi-employer doctrine was not completely eliminated. In Summit Contractors, the OSHRC addressed only the application of the multi-employer doctrine to controlling employers who neither created the hazard nor exposed their own employees to the hazard. The opinion made no mention of correcting employers, nor did it hold that the multi-employer doctrine was wholly invalid. Moreover, OSHA may continue to issue citations to controlling employers that create hazards or expose their employees to hazards and to nonconstruction-industry controlling employers.

    Summit Contractors is an extremely significant decision for general contractors in the construction industry. Before Summit Contractors, OSHA frequently cited general contractors under the multi-employer worksite doctrine for hazards created by subcontractors, even if the general contractors did nothing more than select and schedule the subcontractors. As a result, general contractors often faced costly litigation and stiff penalties. In addition, they ran the risk of acquiring a record of violations that could increase the amount of future citation penalties. Now, because of Summit Contractors, general contractors that do not create or expose employees to hazards no longer face the possibility of receiving a citation merely because OSHA violations occur on their construction worksites.