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 Brent I. ClarkIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis:  The Occupational Safety & Health Review Commission (Review Commission) issued two orders this month — the first we have heard from the Review Commission since April 27, 2017.  The orders followed, on August 28, 2017, James J. Sullivan, Jr., being sworn in as a new and needed third Commissioner.  Also on August 16, 2017, Heather L. MacDougall was sworn in as the Chairman, after being appointed to the position by President Trump.  These two orders represent the first of many expected now to come.

For the first time in over two years, the OSHA Review Commission is fully staffed with three Commissioners. The Review Commission is the independent federal agency that provides trial and appellate review of contested cases resulting from OSHA inspections.

Although two commissioners can and have been deciding cases, it is expected that cases will now be addressed more expediently with three Commissioners. In the past years, the Commission has been criticized for its heavy backlog. Dozens of cases await the Commission’s attention right now. Although the new 3-person panel has only issued two orders so far, we can expect to see many more orders issue in the coming months.

For employers this means that contests of citations that are appealed from administrative law judge decisions will likely be resolved more quickly than in the recent past. This also means that new case law precedent will be issued, which will affect employer defenses in a variety of safety and health contexts.

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, 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, 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.

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

iStock_000009254156LargeSeyfarth Synopsis: In a move that may be employer-friendly, President Trump has re-nominated Heather MacDougall to the OSHRC. MacDougall represents a Republican vote on cases appealed before the Commission.

Heather L. MacDougall has recently been re-nominated by President Trump to the Occupational Safety and Health Review Commission (OSHRC).  McDougall was originally nominated to the OSHRC in 2014 by then-President Obama and confirmed unanimously by the Senate.  MacDougall had then been designated as acting Chair of the OSHRC. Her previous term was set to expire in January 2017.

OSHRC is an independent federal agency set up to adjudicate disputes over OSHA citations or penalties, including hearing appeals from employers.  Although MacDougall and Commissioner Cynthia L. Attwood are currently its only members, they have a quorum and may issue decisions.  The tird seat on the OSHRC remains open.

According to the Whitehouse news release MacDougall came to the OSHRC with twenty years of experience representing employers throughout the United States in matters involving labor, employment, and occupational safety and health law, most recently with Akerman LLP in West Palm Beach, Florida.  In addition, she had served as Chief Counsel to OSHRC Chairman W. Scott Railton.

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 Brent I. ClarkJames L. Curtis, Benjamin D. Briggs, Mark A. Lies, II, and Craig B. Simonsen

Construction Inspector 4Seyfarth Synopsis: Congress passes a Resolution to dismantle an OSHA final rule, adopted in December 2016, which despite statutory language to the opposite, “more clearly states employers’ obligations” to record an injury or illness which continues for a full five-year record-retention period.

The Occupational Safety and Health Administration announced in December 2016 a new final rule that OSHA claims “clarifies an employer’s continuing obligation to make and maintain an accurate record of each recordable injury and illness.” The rule had been proposed in July 2015. In response, the House of Representatives this week passed a Resolution to block the regulation, stating that “such rule shall have no force or effect.”

The bill, House Joint Resolution 83, passed by a vote of 231 to 191, will now move to the Senate for consideration. The White House had issued a Statement of Administration Policy announcing that it “strongly supports” passage of the bill.

In a statement, Rep. Byrne said: “OSHA’s power grab is not only unlawful, it does nothing to improve workplace safety. What it does do is force small businesses to confront even more unnecessary red tape and unjustified litigation. As Republicans have been saying for years, OSHA should collaborate with employers to prevent injuries and illnesses in workplaces and address any gaps in safety that might exist.”

OSHA’s longstanding position had been that an employer’s duty to record an injury or illness continues for the full five-year record-retention period. It cited to Occupational Safety and Health Review Commission cases dating back to 1993. In 2012, however, the D.C. Circuit issued a decision, in AKM LLC v. Secretary of Labor, __ F.3d ___, 2012 WL 1142273 (DC Cir., April 06, 2012), reversing the Commission and rejecting OSHA’s position on the continuing nature of its prior recordkeeping regulations.

The AKM or “Volks” decision applied the standard six month statute limitations to an employer’s duty to put work related injuries and illnesses on the OSHA 300 log. The D.C. Circuit decision affectively ended OSHA practices of issuing citations for alleged recordkeeping errors back five years.  OSHA did not appeal the Volks decision.  As we previously blogged, OSHA’s rulemaking was a clear attempt to avoid the D.C. Circuit of Appeals ruling.

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

Seyfarth Synopsis: OSHA finalizes rule that “more clearly states employers’ obligations” to record an injury or illness which continues for the full five-year record-retention period.

The Occupational Safety and Health Administration announced last week a new final rule that “clarifies an employer’s continuing obligation to make and maintain an accurate record of each recordable injury and illness.” The rule had been proposed in July 2015.

OSHA’s longstanding position had been that an employer’s duty to record an injury or illness continues for the full five-year record-retention period. It cited to Occupational Safety and Health Review Commission cases dating back to 1993. In 2012, however, the D.C. Circuit issued a decision, in AKM LLC v. Secretary of Labor, __ F.3d ___, 2012 WL 1142273 (DC Cir., April 06, 2012), reversing the Commission and rejecting OSHA’s position on the continuing nature of its prior recordkeeping regulations.

The AKM or “Volks” decision applied the six month statute limitations to an employers duty to put work related injuries and illnesses on the OSHA 300 log. The D.C. Circuit decision affectively ended OSHA practices of issuing citations for alleged recordkeeping errors back five years.

According to OSHA , this new final rule merely seeks to more clearly define employers’ obligations. “This rule simply returns us to the standard practice of the last 40 years,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. According to OSHA the amendments in the final rule add “no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not already required.”

In reality, the new rule’s an obvious attempt to avoid the D.C. Circuit decision in Volks. It is important to note that OSHA waived its right to appeal the Volks decision to the Supreme Court at the time and thus cannot legally evade the legal precedent created by that decision.

It is important for employers to ensure that employees who are responsible for recording the company’s injuries and illnesses are well trained to correctly identify those items that need to be logged.

The effective date for the rule is January 18, 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.

By Ilana R. Morady and Craig B. Simonsen

Construction Inspector 4OSHA, through a rulemaking, is seeking to build a work-a-round to a D.C. Circuit Court of Appeals opinion on issuing citations for recordkeeping violations that are more than six months old. 80 Fed. Reg. 45116 (July 29, 2015).

We had blogged previously about the D.C. Circuit Court of Appeals opinion in AKM LLC v. Secretary of Labor, 675 F.3d 752, 2012 WL 1142273 (DC Cir., 2012). In that case the Occupational Safety and Health Administration (OSHA) had issued certain recordkeeping citations and penalties for alleged errors on an OSHA 300 log more than six months after the alleged erroneous entries were made on the log. The Court found that that the citations were untimely, and were vacated.

The question before the Court in AKM LLC was whether the Occupational Safety and Health Act’s (OSH Act) recordkeeping requirement, in conjunction with the five-year regulatory retention period, permits OSHA to subvert the OSHA Act’s six-month statute of limitations. Because the Act says that “[n]o citation may be issued . . . after the expiration of six months following the occurrence of any violation,” 29 U.S.C. § 658(c), the Court agreed with the employer, Volks Constructors (Volks), that the citations were untimely, and vacated them.

OSHA had cited and fined Volks for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006. OSHA issued the citations in November 2006, which was at least six months after the last unrecorded injury occurred.

The Court in AKM LLC summed it up this way: “The Act clearly renders the citations untimely, and the Secretary’s argument to the contrary relies on an interpretation that is neither natural nor consistent with our precedents. The petition for review is granted and the citations are vacated.” This AKM LLC decision had raised serious questions about OSHA’s ability to issue citations for past violations, not only under the recordkeeping standard, but under other OSHA standards as well.

In response, now OSHA is proposing to amend the recordkeeping regulations to “clarify” that the duty to make and maintain accurate records of work-related injuries and illnesses would be an ongoing obligation for five years after a record should have been made on the log. “The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness; the duty does not expire just because the employer fails to create the necessary records when first required to do so.”

Under the AKM LLC decision, employers who have been cited for recordkeeping violations that occurred more than six months before OSHA issued the citation have had a viable statute of limitations defense. OSHA’s proposed rule threatens that defense and is inconsistent with the AKM LLC finding that “nothing in the [OSH Act] suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-making violation over employers for years.”

Written comments on the proposed rule are due to OSHA Docket No. OSHA–2015–0006 on September 28, 2015.

By Brent I. Clark, Meagan Newman, and Craig B. Simonsen

Employers are reminded of a difficult lesson by a recent administrative law judge decision on “excusable neglect.” Secretary v. Progressive Interest, Inc., OSHRC No. 12-1805.

According to the administrative law judge the citation in this matter was issued to the company on July 30, 2012, received by certified mail, and signed for by an employee, on August 2, 2012. So the deadline to file the Notice of Contest was August 23, 2012. The company had no guidelines for employees handling the mail, including certified mail, during this period, except that employees were to put the mail on the account manager’s desk unopened. Unfortunately, the account manager was out of the country for 30 days and returned back to the office on August 21, 2012, which was two days before the deadline to file the Notice of Contest.

Then the account manager did not sort and go through the mail right away. But more, neither did the company communicate with OSHA at all before filing the written “Late Notice of Contest” on August 27, 2012, 6 days too late. The ALJ found that a “timely filing of Notice of Contest could have occurred had Respondent in place satisfactory internal mail handling procedures.”

If you have recently had government agency inspectors at your facility, it is important to watch for and respond to subsequent correspondences from them in a timely manner. If you find that you cannot meet the agency imposed response deadline, then reach out at once and communicate with the agency representatives seeking a time extension for your response. Such extensions are not always possible — but not doing so will only result in an outcome you do not want. The citation will be upheld against the company.