By James L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  We had blogged previously that OSHA appealed an Administrative Law Judge (ALJ) ruling that severely limited OSHA’s Multi-Employer Worksite Doctrine and citation of a “controlling employer” general contractor. Acosta v. Hensel Phelps Constr. Co., No. 17-60543 (5th Cir. August 4, 2017).  The Fifth Circuit has now reversed the ALJ, and upheld OSHA’s Multi-Employer Worksite Doctrine.

In dramatic language, the U.S. Court of Appeals for the Fifth Circuit (governing federal law in Texas, Mississippi, and Louisiana) announced, that “thirty-seven years ago, this court, in a tort case, announced that ‘OSHA regulations protect only an employer’s own employees’.”  Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 711 (5th Cir. 1981).  That decision had endured despite the seismic shift brought about by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and of broader employer liability under the Act.  Acosta v Hensel Phelps Construction, No 17-60543 (5th Cir November 26, 2018).  OSHA’s Multi-Employer Worksite Doctrine enables the Agency to cite employers who are “controlling,” “exposing,” “creating,” or “correcting” safety hazards.  OSHA regularly cites general contractors as “controlling” employers with regard to hazards only faced by subcontractor employees.

In the instant appeal, the Court was asked whether OSHA has the authority, under either the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (the Act), or regulations, “to issue a citation to a general contractor at a multi-employer construction worksite who controls a hazardous condition at that worksite, even if the condition affects another employer’s employees.”  The Court concluded that OSHA does indeed have that authority under the Act.

Factually, an OSHA compliance officer conducted an inspection of the site and discovered three sub-contractor employees working at the base of an unprotected wall of evacuated soil.  The contractor’s and the subcontractor’s superintendents were present at the wall, with full views of the subcontractor’s employees working near the wall.  OSHA cited both contractor and the subcontractor for willfully violating 29 C.F.R. § 1926.652(a)(1) for allegedly “exposing employees to a cave-in hazard from an unprotected excavation at a construction site.”

The ALJ determined that the contractor met the requirements to be considered a “controlling employer” who had a duty under 29 U.S.C. § 651 et seq., to “act reasonably to prevent or detect and abate violations at the worksite even when the affected employees are those of another employer.”  However, because the citation arose within the jurisdiction of the Fifth Circuit, the ALJ found that “Fifth Circuit precedent foreclosed the citation” against the general contractor.  The ALJ relied on Melerine, Inc., 659 F.2d at 711, finding that “an employer at a worksite within the Fifth Circuit cannot be held in violation of the Act when the employees exposed to the hazard were employees of a different employer.”

Rather than follow Commission precedent and uphold the citation, the ALJ found that “where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case – even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Service, Docket No. 96-1719, 2000 WL 294514 (Mar. 16, 2000).  Therefore, the ALJ ruled that “applying 5th Circuit precedent, Respondent cannot be liable for a violation of the Act based solely upon a subcontractor’s employees’ exposure to the condition,”  and vacated the citation.

The Court here concluded that “an agency’s interpretation of its governing statute in an administrative adjudication ‘is as much an exercise of delegated lawmaking powers as is the Secretary’s promulgation of a workplace health and safety standard… The Multi-Employer Worksite Doctrine is an agency document that provides guidance to OSHA inspectors as to when it may be appropriate to cite a particular employer.”  The Secretary did not derive any authority from the Policy in issuing the citation to Hensel Phelps; “he relied on the statute itself and engaged in adjudication on the basis of that statutory authority.”  The Court found that the Secretary’s construction of the statute as granting authority to issue citations to controlling employers is a “reasonably defensible” one.

Accordingly, OSHA’s Multi-Employer Worksite Doctrine is now fully enforceable in the Fifth Circuit.

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) or Workplace Policies and Handbooks Teams.

By Mark A. Lies, IIJames L. CurtisDaniel Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis:  New Review Commission decision refines the definition of what OSHA must prove to establish a “Repeat” violation.

On September 30, 2008, OSHA issued a citation to Angelica Textile Services, Inc., a commercial laundry, alleging ten Serious and four Repeat items. Seyfarth represented the employer, Angelica Textile Services, Inc. After the parties filed cross motions for summary judgment, the Administrative Law Judge issued a decision affirming two of the Serious items and vacating the remaining twelve items, including the Repeat citations. The Secretary of Labor appealed, arguing that the judge improperly vacated two Repeat citations that alleged deficiencies of permit required confined spaces (PRCS) and lockout/tagout (LOTO) procedures.

On July 24, 2018, nearly a decade after the citations were issued, the Occupational Safety and Health Review Commission (Commission) affirmed the previously vacated citation items, but characterized and reclassified them as Serious rather than Repeat violations, and issued a single reduced penalty of $7,000. See Secretary of Labor v. Angelica Textile Services, Inc., No. 08-1774.

Most importantly, the Commission refined the definition of what OSHA must prove to establish a Repeat violation. OSHA has traditionally taken the position that all the evidence it had to show to meet the “substantial similarity” standard was merely that the same type of equipment, process or regulation that was involved in the current violation was also involved in a prior final citation which served as the basis for the Repeat violation. In the Angelica decision, the Commission clarified that a showing of “substantial similarity” can be rebutted with a showing of “disparate conditions and hazards associated with these violations of the same standard.”

The decision also refined what defenses an employer may have to a Repeat citation based on the abatement actions it took to abate the earlier violation. Applied to the facts of the case, the Commission noted that the prior PRCS citation identified “critical deficiencies” in the employer’s compliance program.  However, in response to the prior citation, the Company “actively sought out and eliminated similar hazards,” including developing a PRCS program specific to the condition cited.

The majority in Angelica noted that the Company’s prior abatement efforts also resulted in reduced citations in the current matter.  Similarly, the Commission noted that the prior LOTO citation to the Company had identified a “comprehensive failure of compliance.”  However, the present case involved procedures established in the interim, as well as surveys completed for machines that the Company had undertaken in response to the prior violations.  Rather than lacking the previous comprehensive procedures as was the case in the earlier citations, there were only two discrete deficiencies in the employer’s current program.

Significantly, the Commission also remarked in a footnote that the Secretary had accepted the Company’s prior abatement method, thus giving no basis for OSHA to conclude that the Company knew that its interim safety precautions and corrective actions were not compliant.

After comparing the employer’s attempts at compliance with the prior and subsequent citations, the Commission reasoned that, while the prior citations had been based on a complete failure to comply, the current citations reflected only minimal deficiencies. In other words, “[the Company] took affirmative steps to achieve compliance and avoid similar violations in the future.”  Because of these interim abatement actions, the Commission concluded that there was no basis for a Repeat citation.

In light of the Angelica decision, it appears that OSHA’s burden of proof has been measurably increased to establish a Repeat violation and it will be more difficult for OSHA to prove Repeat citations against employers. Following the acceptance of a citation, employers should work with a team well versed in the concepts espoused in the Angelica decision so that it can take the appropriate steps to establish that it acted in good faith and took effective and documented action to correct the violation. Employers should “actively [seek] out and eliminate[] similar hazards,” or “[take] affirmative steps to achieve compliance and avoid similar violations in the future.”  As there is no mechanical way to avoid a Repeat citation, and the corrective actions taken will depend on the factual circumstances surrounding the citation, employers should consult experienced counsel for guidance on what constitutes abatement of the citation and how to properly document such actions. Most importantly, beyond the concern of legal liability, if an employer takes the interim actions endorsed by the Angelica decision, it will measurably enhance the safety and health of its workplace.

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.

By James L. CurtisKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  A railcar cleaning company and its executive officers were recently charged in a 22-count indictment with conspiracy, violating worker safety standards resulting in worker deaths, violating the Resource Conservation and Recovery Act (RCRA), and for submitting false documents to a federal agency.

Nebraska Railcar Cleaning Services LLC (NRCS) employees sent workers in to railcars to scrape and remove various commodities from tanker cars, including gasoline, ethanol, petroleum by-products, pesticides, herbicides, and food grade products.  Two of the company’s workers were killed and a third was injured when the contents of a railcar ignited while being cleaned.  According to the indictment, the company, NRCS and its owners and executives, allegedly failed to implement worker safety standards and then tried to cover that up during an Occupational Safety and Health Administration (OSHA) inspection.  The defendants also allegedly mishandled hazardous wastes removed from rail tanker cars during the cleaning process.

OSHA requires employers to test air in confined spaces such as rail tanker cars for hazardous gases prior to allowing employees to enter the confined workspace, and to provide employees exposed to certain chemicals with respirators for which they must be assessed and fit tested.  EPA requires facilities like NRCS to ensure that hazardous wastes generated are properly treated and disposed of.

The indictment alleges that after a 2013 inspection of NRCS, the company represented that NRCS had been testing for hazardous wastes, including benzene, since July 2014.  After OSHA returned to NRCS in March 2015 to conduct a follow-up inspection and was turned away, documents were “created” and submitted to OSHA to “falsely show” that NRCS had been purchasing equipment to test the contents of railcars for benzene and had taken other required safety precautions.  In addition, “during inspections by the Nebraska Department of Environmental Quality and the U.S. Environmental Protection Agency in 2013 and 2014 respectively, NRCS was informed that it was required to test its wastes to determine if they were hazardous in order to properly dispose of them, rather than send all untested waste to a landfill not permitted to receive hazardous waste.”  The indictment alleges that was not done before April 2015.

In April 2015, the contents of a railcar ignited while being cleaned by NRCS employees. Two employees were killed and a third was injured. Two days after the explosion, NRCS had three railcars tested to assess whether their contents were hazardous, and two were determined to be hazardous.

Employer Takeaways

This indictment presents a good example of what not to do when dealing with OSHA and environmental agency inspectors.  First, if the employer represents that it is implementing certain safety measures — do it!  Secondly, the case serves as a reminder of the importance of providing complete and accurate submittals to government entities.  A deliberate falsification can have serious ramifications, both by way of civil penalties and criminal prosecution.  As everyone has learned through countless infamous cases, it’s not the crime but the cover-up that will really come back to bite the employer.

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.

By Mark A. Lies, IIJames L. Curtis, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  A contractor’s employee fell 36 feet while working at a warehouse construction site and not using fall-protection equipment.  Following a bench trial before the District Court, the Defendant contractor DNRB, Inc. was convicted of a Class B misdemeanor for willfully violating two safety regulations (29 C.F.R. § 1926.760(a)(l) and (b)(l)), and causing the employee’s death. The Eighth Circuit upheld the conviction.

  1. Willful Fall Protection Citation Based on Fatality Leads to Criminal Prosecution.

OSHA commonly cites construction employers whose employees fail to use fall protection.  In fact, 29 CFR § 1926.501 (Fall Protection in Construction) is the most frequently cited regulation by federal OSHA.  Employers who fail to provide and enforce the use of fall protection do so at their own peril, as OSHA will cite employers with willful violations, dramatically increasing the civil penalties.  In the event of a fatality a willful citation can then lead to a criminal prosecution by the Department of Justice.

  1. Presence of Fall Protection Equipment Does not Negate Criminal Intent.

United States v DNRB, Inc., No. 17-3148 (8th Cir. July 17, 2018), is an example  of just this kind of prosecution, where OSHA cited the employer for a willful violation of the fall protection standard for steel erection rules, 29 C.F.R. § 1926.760.  The Contractor was also criminally prosecuted, convicted, and sentenced to the maximum penalty.

On appeal, the employer challenged the sufficiency of the evidence, several evidentiary rulings and the sentence imposing the statutory maximum fine of $500,000.  It argued that the Department of Justice failed to prove the three elements necessary to find a criminal conviction (29 CFR § 666(e)): (1) that the company violated an applicable standard, (2) that it did so willfully, and (3) that the violation caused an employee’s death.

Principally, the employer argued that its conduct was not willful because it provided fall protection and anchorage points, and the employee was wearing a harness.  The Court countered that while the employee had a personal fall-arrest harness and connectors, he was not using them to secure himself to an anchorage point on the warehouse’s frame.  The Court explained that “the regulations state that employees ‘shall be protected’ by appropriate equipment, not that they merely be provided with or possess such equipment” (emphasis added).

  1. Court Relies on Past Citation and Prior Warning to Establish Criminal Intent.

The Eighth Circuit then noted that the Contractor had a previous citation for violating the same standard (§1926.760), and so concluded that the Contractor was aware of its requirements.  “Moreover, a supervisor’s knowledge can be imputed to his employer, and there was evidence supporting a conclusion that [the employee’s] supervisor … intentionally disregarded the safety requirements here.”  In fact “a crane operator stated that he expressly warned [the supervisor] about [the employee’s] failure to use fall-protection equipment.”

Finally, the Court found that the employee would not have fallen to his death had he been connected to an anchorage point, and that the employer’s failure to make him use required fall-protection equipment was a “but-for cause” of his death.  In addition it determined that the fall was “a foreseeable and natural result” of working more than 30 feet above the ground without using fall-protection equipment.

  1. Employers Must Enforce Safety Rules and Contest Unfounded Citations.

Employers may draw numerous lessons from this case.  Foremost is the absolute importance of providing fall protection, supervising employees who are exposed to fall hazards to ensure they use the equipment, and enforcing the employer’s safety rules.  Only then will employers be able to prove the affirmative defense of employee misconduct when an employee fails to use his assigned fall protection equipment.  United States v DNRB, Inc., shows the perils for employers who fail to enforce safety rules and fail to respond to reports of noncompliance by an employee.  This case also illustrates how accepting and settling citations may set-up an employer for a willful citation in the future, and even a criminal prosecution in the event of a fatal accident.  Employers should consult with legal counsel regarding an OSHA fall protection citation and ensure that any defensible citations are contested and vacated.

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.

By Mark A. Lies, IIAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: A recent Eastern District of Wisconsin case held that an OSHA 11(c) retaliation claim will survive summary judgment where the employer failed to comply with its own investigation procedures.

In Acosta v Dura-Fibre, No. 17-C-589, 27 OSHC 1179 (ED Wis. May 30, 2018), under the employer’s, Dura-Fibre, LLC’s (Employer), Accident Reporting/Investigation Plan (Injury Reporting Policy), if an employee is injured or almost injured at work, he must report the injury or “near miss.”  The Employer instituted the Injury Reporting Policy to emphasize timeliness in reporting injuries and to create a “near miss” program to increase reports of unsafe acts that did not result in injury.   The Injury Reporting Policy required that an employee notify a supervisor of an accident or “near miss” as soon as possible, or by the end of the employee’s shift.  The Injury Reporting Policy defined accident as “any occurrence that led to physical harm or injury to an employee and/or led to damage of company property” and near miss as “any occurrence that did not result in an accident but could have.”

The Employer required that employees report all injuries, even if the employee did not consider the injury to be serious.  Any employee that failed to report an accident or near miss in a timely manner could be subjected to discipline up to and including termination.  After the company’s assessment of the injury report, a “Safety Incident Report” would be prepared that determined whether the employee should receive disciplinary points in accordance with the Employer’s 24-point disciplinary program.  Under the disciplinary program, employees may be assigned a designated number of points for violations of the company’s rules and policies, such as failing to report an injury to a supervisor by the end of his shift, failing to use safety equipment, or committing an “unsafe act.”

The Injury Reporting Policy does not, though, define the phrase “unsafe act.” With the uncertain definition of the term “unsafe act” and the disciplinary points employees could receive for committing an “unsafe act,” the Secretary argued that employees were naturally reluctant to report injuries or illnesses they sustained.

The Court noted that as such, employees who suffered injuries on the job found themselves in a classic “catch 22”: “if they are injured at work, they must report the injury to a supervisor or face discipline, but if they do report an injury, management may well conclude the injury resulted from their own unsafe act for which they will also face discipline. Either way, the employee risks discipline.”  It is in this context that this claim arises.

The Secretary asserted that the Employer violated section 11(c) the OSH Act when it retaliated against the Employee by assessing him disciplinary points after he reported injuries on two separate occasions, and then ultimately terminated him under its disciplinary policy.

The Employer did not dispute that the Secretary had satisfied the first and second elements of the prima facie case.  The Employee engaged in protected activity when he reported to company management that he injured his ankle and another employee injured his shoulder. The Employee suffered three adverse actions in the form of disciplinary points for the late reporting of the other employee’s injury, and for engaging in an unsafe act in relation to his own injury, as well as termination of his employment.

The Court found sufficient evidence of pretext from two sources.  First, the Company did not discipline employees who reported “unsafe acts” relating to near misses.  Accordingly, the Court concluded that injured employees were allegedly more likely to be disciplined and thereby deterred from reporting .  Second, the Court noted that the Employer failed to follow its own accident investigation procedures.  The Court found a  technical “apparent deviation” from the procedure enough to be a triable issue, and denied summary judgment.  The case will proceed to trial.

Accordingly, employers need to maintain reporting policies with regard to all unsafe acts, near misses, and accidents.  Employers must consistently investigate accidents and enforce all safety rules.

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

By Joshua M. Henderson

Seyfarth Synopsis: Cal/OSHA regulations are enforced by a state agency in administrative litigation. A new Supreme Court decision, Solus Industrial Innovations, Inc. v. Superior Court, allows employees allegedly suffering injuries caused by Cal/OSHA violations to sue for unfair business practices.

The Facts

A water heater explosion at Solus Industrial Innovations, Inc. left two employees dead. After an investigation, the Division of Occupational Safety and Health issued five citations against Solus for alleged violations of Cal/OSHA regulations. Solus appealed the citations to the Cal/OSHA Appeals Board.

Meanwhile, the California Bureau of Investigations (BOI) conducted a separate investigation, as it must when an employee is killed at work. The BOI forwarded its investigation results to the Orange County district attorney (DA), who then filed criminal charges against the plant manager and maintenance supervisor for felony violations of the Labor Code.

The DA also filed a civil action against Solus, claiming that Solus had violated California’s Unfair Competition Law (UCL) and Fair Advertising Law (FAL). These claims alleged that Solus, by maintaining an unsafe work environment, had engaged in unfair and unlawful business practices, while also committing false advertising by making “numerous false and misleading representations concerning its commitment to workplace safety and its compliance with all applicable workplace safety standards,” which allowed it to attract and retain customers and employees.

Solus demurred to the DA’s lawsuit, which was overruled. On an expedited appeal, the Court of Appeal ruled in favor of Solus. The Court of Appeal reasoned that the federal Occupational Safety and Health Act (OSHA) preempted UCL and FAL claims arising from alleged Cal/OSHA violations. The DA sought review by the California Supreme Court.

The Supreme Court’s Decision

A unanimous California Supreme Court reversed. The Court held that federal OSHA did not preempt the DA’s civil action against Solus. Rather, California law preempted federal OSHA—a sort of reverse preemption.

Understanding the Supreme Court’s holding requires a brief summary of federal OSHA’s relationship with Cal/OSHA. Federal OSHA occupies the field of workplace safety and health, but permits states to create their own regulatory plans subject to federal review and approval. California has had such a federally approved state plan since 1973. Under this system, federal OSHA provides a regulatory “floor” under which state plans may not fall. But states may enact broader workplace safety protection than found under federal OSHA.

The Supreme Court rejected Solus’s argument that federal law explicitly or impliedly preempted California law except for provisions of the federally approved state plan. Federal OSHA identifies specific areas (such as workers’ compensation laws) that are not preempted. Yet it does not identify precisely what is preempted. According to the Supreme Court, federal OSHA, by allowing states to provide broader protections, anticipates that states may use enforcement mechanisms other than administrative litigation under the state plans to further their aims. Civil litigation under state law, according to the Court, is not foreclosed by the federal statutory scheme.

The Supreme Court noted that UCL and FAL actions may be brought by both government officials and by persons who have suffered an “injury in fact.”

What Solus Means For Employers

While California law (specifically, the Private Attorneys General Act (PAGA)) previously has allowed claims against employers based on alleged workplace safety violations, PAGA poses several obstacles to ultimate recovery, including exhaustion of administrative remedies and, for some alleged violations, allowing an employer thirty-three days to cure the violations.

Those obstacles do not exist for would-be plaintiffs in UCL and FAL litigation. Accordingly, Solus may result in a spike in workplace safety and health litigation against employers, for several reasons. First, Solus does not require a final order of the Cal/OSHA Appeals Board affirming the underlying administrative citations. Indeed, though the Division had filed citations against Solus, the case was put on hold. During a BOI investigation and any ensuing prosecution, litigation between the Division and an employer concerning administrative citations is held in abeyance. This point raises the possibility that an employer may defeat Division citations and criminal charges, yet still be subject to civil claims.

Second, nothing in the California Supreme Court’s decision suggests that administrative citations are a prerequisite to filing a UCL or FAL claim. Employees may attempt to establish injury in fact in litigation without resorting to filing an administrative complaint with the Division. By contrast, PAGA requires notice to the Division, along with “the facts and theories to support the alleged violation.” Although damages are not available under the UCL, restitution and injunctive relief are. An employee must prove some kind of economic injury in these cases, which may make it more difficult to recover restitution, but may lead to injunctions against employers.

Third, while the Division has six months to issue a citation, the statute of limitations is four years for a UCL claim and three years for a FAL claim. Therefore, the “repose” promised by a six-month administrative limitations period may be shattered by an employee civil action filed long thereafter.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By James L. Curtis, Brent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis: As expected, OSHA has appealed an ALJ ruling that severely limits OSHA’s “controlling employer” enforcement policy. Acosta v. Hensel Phelps Constr. Co., No. 17-60543 (5th Cir. 8/4/17).

This case involves an unprotected excavation at a construction site that both parties agreed was in in violation of OSHA’s trenching standards.  The Respondent was the general contractor on the construction project with overall control and responsibility for the worksite.  The Respondent also had management employees on site who were present at the excavation who “could have easily” prevented the subcontractor’s employees from working in the unprotected excavation but did not do so.  However, the Respondent did not have any of its own employees who were exposed to the hazardous excavation.

OSHA cited Respondent as a “controlling employer” under OSHA’s multi-employer policy and longstanding Occupational Safety and Health Review Commission precedent that has held that “an employer who either creates or controls the cited hazard has a duty under § 5(a)(2) of the Act, 29 U.S.C. § 666(a)(2), to protect not only its own employees, but those of other employers ‘engaged in the common undertaking’.” McDevitt Street Bovis, Docket No. 97-1918 (Sept. 28, 2000).  “An employer may be held responsible for the violations of other employers ‘where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.”’ Summit Contractors, Inc., Docket No. 05-0839 (Aug. 19, 2010).

Nonetheless, while the Commission has upheld “controlling employer” citations based on exposure to another employer’s employees, this violation occurred at a jobsite in Austin, Texas, which was under the jurisdiction of the U.S. Court of Appeals for the 5th Circuit.  In 1981, the Fifth Circuit ruled that the OSH Act, its legislative history, and implemented regulations, serve to protect “an employer’s own employees from workplace hazards.”  ALJ’s emphasis.  Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981).  Accordingly, rather than follow Commission precedent and uphold the citation, the ALJ found that “where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case – even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Service, Docket No. 96-1719 (Mar. 16, 2000).  Therefore, the ALJ ruled that “applying 5th Circuit precedent, Respondent cannot be liable for a violation of the Act based solely upon a subcontractor’s employees’ exposure to the condition,”  and vacated the citation.

OSHA is appealing the ALJ’s decision to the 5th Circuit hoping that the 5th Circuit will reverse its 1981 holding in Melerine v. Avondale Shipyards, Inc.   This case represents a serious threat to OSHA’s multi-employer policy.  If upheld by the 5th Circuit, OSHA’s “controlling employer” policy may be in jeopardy. We will keep our readers apprised as this case develops.

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.

By Benjamin D. Briggs, Brent I. ClarkJames L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

iStock_000042612884_MediumSeyfarth Synopsis: In an interesting outcome, an OSHRC Administrative Law Judge recently vacated a citation to an alleged “controlling employer” based on 5th Circuit precedent – despite being contrary with OSHA policy and other OSHRC precedent.

A recent Occupational Safety and Health Review Commission (Commission) Administrative Law Judge, Brian A. Duncan’s decision, in Hensel Phelps Construction Co., Docket No. 15-1638 (April 28, 2017), considered whether Respondent, as the general contractor for the project, can be held liable for the violation as a “controlling employer.”  Additionally, the parties argued and stipulated that under 5th Circuit case law, that OSHA’s “controlling employer” policy has been invalidated and is unenforceable.

The Commission has held that “an employer who either creates or controls the cited hazard has a duty under § 5(a)(2) of the Act, 29 U.S.C. § 666(a)(2), to protect not only its own employees, but those of other employers ‘engaged in the common undertaking’.” McDevitt Street Bovis, Docket No. 97-1918 (Sept. 28, 2000).  “An employer may be held responsible for the violations of other employers ‘where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.”’ Summit Contractors, Inc., Docket No. 05-0839 (Aug. 19, 2010).

In the facts in this case, according to the ALJ, the Respondent had overall construction management authority on the project.  Pursuant to its contract with the City of Austin, and as the jobsite general contractor, Respondent also had authority through its officials and agents to stop construction work performed by subcontractors when hazardous conditions were found, and to prevent them from continuing work due to safety concerns.  Respondent’s onsite safety managers had previously exercised control over jobsite safety by stopping subcontractor work, and by removing subcontractor employees from the jobsite.  In fact, “Respondent’s Area Superintendent … and … Project Superintendent … were actually present when CVI employees were performing work in the unprotected area of the excavation.”

However, this violation occurred at a jobsite in Austin, Texas, which was under the jurisdiction of the U.S. Court of Appeals for the 5th Circuit.  In 1981, the Fifth Circuit, according to the ALJ, ruled that the OSH Act, its legislative history, and implemented regulations, serve to protect “an employer’s own employees from workplace hazards.”  ALJ’s emphasis.  Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981).  In this case, the ALJ clarified that that “where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case – even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Service, Docket No. 96-1719 (Mar. 16, 2000).

Therefore, the ALJ ruled that “applying 5th Circuit precedent, Respondent cannot be liable for a violation of the Act based solely upon a subcontractor’s employees’ exposure to the condition.”  The citation was vacated.

For employers this outcome raises a clear example of where, if issued an OSHA citation, such as under OSHA’s multi-employer citation policy, it is important to review the citation from the big picture, including the law, regulations, and all case law precedent that might impact the citation on the particular employer.  The jurisdiction in which the case arises matters.

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.

By James L. Curtis

iStock_000004162096LargeSeyfarth Synopsis: OSHA has announced that it will be proposing a delay to the July 1, 2017 deadline for certain employers to electronically file injury and illness data.

Under OSHA’s revised recordkeeping rules certain employers are required to electronically file injury and illness data with OSHA.  As we noted previously in our blog, the rule became effective in January, 2017 and required employers to electronically file the information by July 1, 2017.  However, for months the regulated community has been asking how it is expected to accomplish this electronic filing when OSHA has failed to set up a website capable of accepting the submissions.

OSHA has now posted a notice on its website acknowledging that “OSHA is not accepting electronic submission of injury and illness logs at this time and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 form 300A electronically.”

It is unclear how long of a delay OSHA will seek and whether other modifications will be made that would impact the new anti-retaliation provisions.  We will keep readers posted.

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

By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

iStock_000009254156LargeSeyfarth Synopsis: OSHA has rescinded its midnight rule, adopted by the outgoing Administration in December 2016 which attempted to end run the federal court’s decision in Volks that limits the statute of limitations on injury recordkeeping violations to six months.

Prior to 2012, OSHA’s longstanding position was that an employer’s duty to record an injury or illness continues for the full five-year record-retention period.  However, in 2012, the D.C. Circuit issued a decision, in AKM LLC v. Secretary of Labor, 675 F.3d 752 (DC Cir. 2012), rejecting OSHA’s position.

The AKM or “Volks” decision found that the standard six month statute limitations applies to an employer’s duty to record work related injuries and illnesses on the OSHA 300 log. The Volks decision effectively ended OSHA practice of issuing citations for alleged recordkeeping errors going back five years.  This decision did not sit well with OSHA.  In December, 2016 OSHA announced a new final rule that OSHA claimed “clarifies” an employer’s “continuing” obligation to make and maintain an accurate record of each recordable injury and illness for a full five years.

As we previously blogged, OSHA’s rule was a clear attempt to avoid the D.C. Circuit‘s ruling.  In response, Congress passed a Resolution to block OSHA’s rule, stating that “such rule shall have no force or effect.”  Agreeing with Congress, the White House issued a Statement of Administration Policy announcing that it “strongly supports” passage of the bill.

The December midnight rule has now been rescinded by OSHA, effectively acknowledging that the six month statute of limitations applies, not the five year statute of limitations.  82 Fed. Reg. 20548 (May 3, 2017).

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.