By Meagan Newman, Elizabeth Leifel Ash, and Craig B. Simonsen
The DC Circuit Court of Appeals has reaffirmed the Occupational Safety and Health Administration’s (OSHA) use of constructive knowledge to impose liability on employers arising from activities at workplaces where more than one employers employees are working. In Summitt Contractors, Inc. v Occupational Safety and Health Review Commission, No. 10-1329, __ F.3rd __ (DC Cir., December 14, 2011) the Court affirmed, both the administrative law judge (ALJ), who affirmed the OSHA citation, and the Occupational Safety and Health Review Commission (OSHRC) which reviewed and approved of the ALJ decision.
The Court explained that under the Occupational Safety and Health Act, the requirement for employer knowledge is satisfied, even where multiple employers are involved at the site, if the employer “had either actual or constructive knowledge of the violation: ‘i.e., the employer either knew, or with the exercise of reasonable diligence could have known, of the violative conditions,’ and a ‘supervisor’s knowledge is imputed to the company’.” (Citations removed.)
The Court found that “substantial evidence supports the Commission’s finding that Summit could have known of the violative condition with the exercise of reasonable diligence. Summit’s agreement with its subcontractor stated that Summit ‘may provide . . . temporary electrical . . . services,’and that if it did, the subcontractor ‘shall make use of [the service] as provided’.” “In fact, Summit’s supervisor did order the electrical equipment in question but neither requested [ground fault circuit interrupters] nor checked the equipment when it arrived — even though doing so would have taken only a few seconds and required no specialized expertise.”
This decision marks the most recent challenge by an employer to OSHA’s so-called multi-employer worksite doctrine, which gives the Agency the ability to cite multiple employers for the same condition.