By Adam R. Young, Mark A. Lies, Brent I. Clark, James L. Curtis, Patrick D. Joyce, A. Scott Hecker, and Melissa A. Ortega

Seyfarth Synopsis: The Occupational Safety and Health Review Commission’s Summit decision limits enforcement against controlling employers and defines secondary safety roles.

The Multi-Employer Worksite Doctrine allows the Occupational Safety and Health Administration (OSHA) to extend liability beyond an employee’s employer to general contractors, host employers, staffing agencies, and anyone else who can be conceivably related to an employee accident or alleged hazard. In Secretary of Labor v. Suncor Energy (U.S.A.) Inc., OSHRC Docket No. 13-0900, which we previously reported in 2019, the Occupational Safety and Health Review Commission (the “Commission”) issued a significant decision reining in OSHA’s “scattershot approach” to cite all employers at a worksite. Now, the Commission has issued an additional decision, guiding employers on how to avoid “controlling employer” liability.

In Secretary of Labor v. Summit Contracting Group, Inc., OSHRC Docket No. 18-1451, the Commission held Summit lacked knowledge the subcontractors at its worksite were not using fall protection, even though the violative condition was in “plain view.” The Commission found that Summit exercised the reasonable care required of a controlling employer, finding that Summit was operating in a “secondary safety role.”

Multi-Employer Worksite Doctrine

Under Review Commission precedent, including Suncor, a controlling employer (e.g., a general contractor) may be held liable for the violations committed by employees of other employers at worksites where the controlling employer could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.

If a controlling employer has actual knowledge of a subcontractor’s violation, the controlling employer has a duty to take reasonable measures to ensure the subcontractor abates or corrects the violation. In the absence of actual knowledge, the Commission looks to whether the controlling employer has “constructive knowledge,” and met its obligation to exercise reasonable care, i.e., to take reasonable measures to prevent or detect the violative conditions. The Commission assesses the nature, location, and duration of the violative conditions, as well as objective factors relating to the controlling employer’s role at the worksite and its relationship with other onsite employers. A controlling employer’s duty to exercise reasonable care is less than what is required of an employer with respect to protecting its own employees. The Commission takes into account that the controlling employer has a “secondary safety role” at the worksite.

Facts of Summit Case

Summit was the general contractor at a multi-family project in Ponte Vedra, Florida. Summit contracted certain work on the project to Gunner Houston, Ltd. Gunner Houston hired three subcontractors to perform the work. The three subcontractors did not have a direct contractual relationship with Summit.

In April 2017, an OSHA compliance officer inspected the worksite and observed employees of the three subcontractors working without fall protection while exposed to falls ranging from 12 to 34 feet. Neither Summit’s nor Gunner’s employees were exposed to fall hazards. Following the inspection, OSHA issued Summit a one-item citation under the multi-employer worksite doctrine alleging that Summit was the “controlling employer” liable for the three subcontractors’ failure to use fall protection.

Commission’s Reversal and Decision

On review, Summit argued that:

(1) the Secretary’s multi-employer citation policy and Commission precedent were invalid in the Eleventh Circuit, an argument the Commission rejected; and

(2) the ALJ erred in finding that Summit, as a controlling employer, had constructive knowledge of the violative conditions.

The Commission agreed with the ALJ that the only Summit employees at the worksite at the time of the inspection, the superintendent and assistant site superintendent, lacked actual knowledge of the subcontractors’ failure to use fall protection. The Commission, however, disagreed with the ALJ’s finding that Summit had constructive knowledge. The ALJ reasoned that, with the exercise of reasonable diligence, Summit’s superintendents could have uncovered these violative conditions because they were in plain view. The ALJ also found that Summit’s worksite inspections were inadequate in light of the company’s awareness that fall protection violations had previously occurred at this worksite.

The Commission analyzed whether Summit, the controlling employer, satisfied its duty of reasonable diligence and ultimately found that the Secretary did not establish that Summit failed to exercise the reasonable care required of a controlling employer in the secondary safety role and, therefore, failed to meet its burden of proving employer knowledge.

First, the Commission found that although the compliance officer was able to observe the violative condition from the ground level, the condition only existed for 10-15 minutes. The Commission reasoned that in order for Summit to observe the violative condition within this limited timeframe, it would have had to monitor the subcontractors continuously, something the Commission has never required, even of an exposing employer.

Second, the Commission found that the record lacked sufficient evidence to establish that Summit’s monitoring of the subcontractors was inadequate. The record showed that two superintendents conducted daily walkarounds at the site to check on progress and correct safety violations. In addition, Summit hired safety consultants to conduct monthly inspections and document safety violations at the worksite. The Commission found these monitoring activities adequate.

Interestingly, citing Suncor, the Commission found that Summit’s reliance on Gunner Houston and the subcontractors to ensure the safety of their own employees was not unreasonable. The Commission noted that Summit was aware of Gunner Houston’s safety record because it had hired Gunner Houston as its contractor on every one of its jobs for the past eight years. Gunner Houston had its own safety consultant, utilized its own fall protection plan, held safety meetings with its subcontractors’ employees, provided fall protection training to those employees, and had its own superintendents conduct safety inspections at the worksite. Lastly, Summit had a contractual relationship with Gunner Houston, not the subcontractors. Accordingly, Summit’s reliance on Gunner Houston and the subcontractors was not unreasonable.

Lastly, the Commission rejected the Secretary’s argument that Summit’s inspection practices were inadequate because it was aware that the subcontractors had previously failed to use fall protection at the worksite via a report by Summit’s safety consultant. In rejecting the Secretary’s argument, the Commission found that there was no evidence in the record regarding what measures Gunner Houston and the subcontractors took to correct the violations found in the safety consultant’s report, and therefore, it could not conclude that Summit’s response was inadequate given its secondary safety role at the worksite.

Employer Takeaway

Host employers and general contractors can argue they do not have constructive knowledge of violative conditions committed by subcontractors so long as these employers and general contractors exercise reasonable care to discover the conditions. Further, the host employer has a secondary safety role at the worksite and is not held to the same duty of care and inquiry as an exposing employer such as the contractor or subcontractors. Host employers can conduct less frequent inspections and reasonably rely on a contractor if the contractor has a demonstrated history of compliance and sound safety practices.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.