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 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 Mark A. Lies II and Elizabeth Leifel Ash

On August 17, 2009, three journeymen electricians from M. C. Dean (Dean), an outside contractor, were servicing electrical installations at a warehouse owned by Ryder Transportation Services (Ryder).  One of the journeymen electricians fell through a skylight on the warehouse roof and suffered fatal injuries.  Following this accident, the Occupational Safety and Health Administration (OSHA) issued citations to Ryder under the Agency’s multi-employer worksite doctrine as the “controlling” employer, alleging that Ryder was in the position to control access to the skylight and failed to properly guard the skylight on the roof of its warehouse.  OSHA also cited Dean as the actual exposing employer, alleging that Dean also failed to properly guard the skylight.

A previous article, entitled OSHA Expansion of Fall Hazard Liability for Host Employers addressed the citation issued to Ryder as the host employer and made recommendations related to the obligations of a “host” or “controlling” employer who hires contractors to perform specialized work at its facility.

This article discusses the citation issued to M.C. Dean, Inc., and the related recent decision from an Administrative Law Judge (ALJ), in Secretary v. M.C. Dean, Inc., OSHRC Docket No. 10-0549 (May 16, 2011).  The ALJ upheld the citation, and found employer liability based upon a ruling that an hourly employee (a journeyman) was considered to be a supervisor or a part of management, and that the employer was legally bound by “admissions” that the journeyman made in an OSHA interview from which the employer’s legal counsel was excluded. This decision is significant because it reduces OSHA’s evidentiary burden to prove employer knowledge of an alleged violation through an hourly employee as opposed to a management representative. It is also concerning because OSHA excluded the employer from the interview on the grounds that the journeyman was not a member of management and then argued a contrary position at the hearing.  If the employee who is being interviewed is a management representative with authority to make binding admissions, the employer has a right to attend the OSHA interview.

By Mark A. Lies II and Timothy R. Gerlach[1]

It is a fact of everyday business life that many employers will, from time to time, be required to  engage outside contractors to perform a variety of services at the employer’s facility that the employer cannot perform with its own employees.  Recently, OSHA has begun to expand the employer’s liability for OSHA compliance for employees of the outside contractor under its multi-employer workplace liability.  A recent decision in the case of Secretary of Labor v. Ryder Transportation Services, OSHRC Docket No. 10-0551 (ALJ, February 28, 2011) is of concern because it is one that most employers who own a fixed facility will face at some time if they engage an outside contractor to perform services, in this case, on the roof of the facility, either on the roof itself or on equipment, such as HVAC units, located there.  This liability involves the hazard of the outside contractor employees being exposed to injury because of fall hazards, either from the leading edge of the roof or from skylights or other openings in the roof.

RYDER FACILITY

The employer in this case, Ryder Transportation Services (Ryder), owned a facility that it used to rebuild automotive equipment for its vehicles.  Since 2006, no Ryder employee had been on the roof and the roof was classified as a restricted area and its employees were forbidden to access the roof.  The roof had a number of skylights which were unguarded.

In 2009, Ryder requested an outside electrical contractor, M.C. Dean (Dean), that it had used to perform work at the facility to perform work installing exhaust fans near the ceiling inside of the building.  After the fans were installed and failed to function, the Dean employees decided to access the roof to determine why the fans, which protruded through the roof, did not function.  The Dean employees utilized their own aerial lift to access the roof.  A Dean journeyman electrician got out of the lift and walked to one of the exhaust fans.  As the employee walked across the roof back to the aerial lift using a different route, he fell through a skylight to his death.

MULTI-EMPLOYER WORKPLACE LIABILITY

OSHA cited Ryder for the exposure of the Dean employee to the unguarded skylight.[2]  Ryder could not be cited for the exposure of any of its own employees who had not accessed the roof.  Using its multi-employer workplace doctrine, OSHA cited Ryder as the “employer” for failing to protect the Dean employee from the hazard.

The Administrative Law Judge found that the multi-employer workplace doctrine did apply and that Ryder was the controlling employer.  He vacated the citation on a finding that Ryder had “neither actual nor constructive knowledge that an employee would be exposed to unguarded skylights that were remote from his work area” (emphasis added).  OSHA has taken an appeal of the decision, claiming that Ryder had such knowledge.

HOST EMPLOYER LIABILITY

This decision represents a further confirmation of the extent of liability for the host or “controlling” employer under the doctrine.  Now, any employer who engages an outside contractor to perform work on its roof is potentially exposed to liability if it does not confirm that the outside contractor employees are protected from any fall hazards on the roof.  This will require the host employer to insure that skylights are guarded, as well as the leading edge of the roof, or that the employees are utilizing some other form of fall protection while accessing the roof.  This is more troublesome because many host employers have no knowledge of the applicable regulations and are relying upon the outside contractor to have such awareness, as well as appropriate fall protection for their employees.  It is also a certainty that this liability will eventually extend to outside contractors coming to the employer’s worksite to perform all manner of services, including electrical, plumbing, excavation, structural repairs, etc.

RECOMMENDATIONS

In order to avoid such potential liability, the host employer should consider the following actions:

  • conduct a job hazard analysis of its facility, in this case the roof, to determine whether these are fall hazards, such as unguarded skylights, roof exhaust vents, other roof equipment which could pose a fall hazard;
  • once the job hazard analysis has been completed, consider what type of fall protection is required and feasible for employees and outside contractors who may be accessing the roof or equipment located on the roof;
  • after the feasible means of fall protection are identified, develop a written procedure that incorporates these measures and also sets out the process for “authorized” employees to access the roof and under what circumstances such access is permissible and what type of fall protection will be required;
  • conduct documented training for the “authorized” employees who access the roof, monitor their  compliance and discipline the employees who are non-compliant;
  • when the employer is utilizing and outside contractor to perform work on the roof or equipment on the roof, conduct and document a meeting with the outside contractor and provide the outside contractor with information on the presence and location of any fall hazards on the roof or equipment; and
  • confirm and document that the outside contractor has been informed of these hazards and that the outside contractor has the means and methods to provide the necessary fall protection for its employees and that it will supervise, monitor and enforce compliance with its fall protection program.

If the host or controlling employer undertakes these actions, it will minimize its potential liability for fall hazards on the roof for its own employees and those of the outside contractor.

 


[1] Mr. Lies wishes to thank Timothy R. Gerlach for his valuable assistance in the preparation of this article.  Mr. Gerlach is a second year law student at the University of Cincinnati College of Law and is presently interning for the Honorable Judge Steven E. Martin at the Hamilton County Court of Common Pleas, located in Cincinnati, Ohio.  He intends to pursue a career in civil litigation after graduation.

[2] The outside contractor, M.C. Dean, was also cited by OSHA for failure to guard the skylight through which its employee fell.  The citation was affirmed by the Administrative Law Judge.