by Matthew E. Vinciguerra, Associate
Ask virtually any contractor out there what its top priority is on any particular project and the answer, with rare exception, will be jobsite safety. Ensuring a safe work environment places a primacy on any project’s most valuable resource: its people. It also enhances efficiency, reduces delays caused by accidents and minimizes liability caused by violations of applicable regulations. In furtherance of these goals, many contractors require that their employees and subcontractors adhere to particular safety requirements and make initial safety training as well as regular attendance at safety meetings mandatory. Contracts and subcontracts often have these requirements written in, and contractors typically account for the associated costs of compliance, which can be significant, in their bids.
OSHA’s Role
While the impetus for ensuring a safe jobsite comes in part from the contractor’s internal desire for an efficient and accident-free project, there are external forces at work as well, such as federal, state and local regulations. Often it is these external factors that prompt or even require the contractor to adopt safety policies and incorporate them into their contractual relationships. Perhaps the most prominent of these federal regulations are those enforced by the Occupational Safety and Health Administration (OSHA).
OSHA monitors construction sites and contractors through project inspections as well as citations and fines for noncompliance with safety regulations or violations of OSHA requirements. Compliance with OSHA regulations has presented contractors with some of their most difficult challenges; ensuring compliance with OSHA’s myriad regulations, rules and standards across a sprawling construction site teeming with subcontractors and tradesmen can be a daunting task. For over 35 years, OSHA, through the exercise of its inspection and enforcement authority, has compelled contractors to make jobsite safety and employee health top priorities at construction projects nationwide. During the last fiscal year, OSHA conducted more than 3,500 inspections, issued over 11,000 citations and issued fines amounting to more than $7.5 million.
To be sure, construction sites figure prominently among OSHA’s enforcement targets. Among the most frequently cited violations of these standards on construction sites pertain to the standards covering scaffolding and fall protection. These standards recently gave rise to a decision by the Occupational Safety and Health Review Commission (OSHRC) which dramatically altered OSHA’s ability to penalize construction contractors for safety violations committed by their subcontractors. This ruling reverses a 30- year OSHA enforcement policy and provides relief for general contractors from the acts and omissions of the subcontractors.
Secretary of Labor v. Summit Contractors, Inc.
In the Spring of 2007, the OSHRC addressed the question: To what extent does a general contractor bear responsibility for safety violations of one of its subcontractors? In a 2- 1 decision, the Review Commission answered in favor of the general contractor and determined that a general contractor does not bear responsibility for the safety violations of its subcontractor. In short, OSHA may not penalize one employer for the safety violations of another. The decision brought resolution to conflicting regulations which had been applied inconsistently, often to the general contractor’s detriment, for over 30 years.
In 1971, the year following the passage of the Occupation Safety and Health Act, the Secretary of Labor promulgated a regulation that “each [construction industry] employer shall protect the employment and places of employment of each of his employees engaged in construction work….” 29 C.F.R. § 1910.12(a). This requirement meant that each contractor on a jobsite was responsible for the administration and enforcement of its own safety program and for protecting the safety of its workers. A jobsite contractor could not be held liable for the safety violations of another contractor, subcontractor, tradesman or laborer. OSHA, however, took an approach to jobsite safety over the ensuing 20 years, such that in 1994, it revised its Field Inspection Reference Manual (FIRM) to state that penalties could be assessed to any construction site employers, including creating, controlling, and correcting employers, regardless of whether the employer’s own employees were exposed to the hazard. This became known as the “multiemployer worksite doctrine.” See OSHA Field Inspection Reference Manual § VC6 (September 26,1994); see also OSHA Instruction CPL 2-0.124 (December 10, 1999) (parallel language, current multi-employer worksite doctrine).
In Secretary of Labor v. Summit Contractors, Inc., OSHRC Docket No. 03-1622 (April 26, 2007), the OSHRC reconciled the conflict between 29 C.F.R. § 1910.12(a) and the multiemployer worksite doctrine, in the general contractor’s favor.
Factual Background
In Summit Contractors, the OSHRC reviewed the assessment of a fine against Summit for scaffolding and fall protection violations committed by one of its subcontractors. Summit was the general contractor for the construction of college dormitory buildings, totaling 90,000 square feet, in Little Rock, Arkansas. All-Phase Construction, Inc. was Summit’s exterior brick masonry subcontractor. All construction was performed by subcontractors, while Summit maintained only supervisory staff on site. Notwithstanding, Summit assumed no contractual responsibility for supervising All-Phase’s workers. All-Phase used scaffolding to perform its scope of work.
Summit’s project superintendent observed, on occasion, All-Phase workers on scaffolding provided by All-Phase that lacked adequate fall protection. Each time, Summit’s superintendent directed All-Phase to add fall protection. All-Phase would comply, but then fall back into noncompliance each time it moved the scaffolding to a new location. An OSHA Compliance Safety and Health Officer (CSHO) observed All-Phase’s unsafe scaffolding practices, which included workers using scaffolds without guardrails, at heights of 12 to 18 feet. Summit did not employ any of these workers.
The CSHO returned the following week, while Summit’s safety officer was present, and performed a walk around inspection. By this time, the originally observed violations had been corrected. Nevertheless, based on the CSHO’s earlier observations, OSHA issued Summit a citation for the scaffolding violation as a “controlling employer” within the meaning of the multi-employer worksite doctrine. OSHA also cited All-Phase as the employer who created the hazardous condition and as the employer whose employees were exposed to the condition.
Summit’s Administrative Hearing
Summit contested the citation before an administrative law judge, arguing unsuccessfully that the multi-employer worksite doctrine, upon which the citation was based, was unenforceable under 29 C.F.R. § 1910.12(a). In affirming the penalty, the judge accepted as fact that Summit did not create, and did not expose its employees to, the hazardous condition. However, the judge determined that if Summit had sufficient authority and control to prevent or remove the scaffold violation, then under the multiemployer worksite doctrine, Summit’s citation was proper.
The judge noted that supervisory authority and control exist where a general contractor has specific authority to demand a subcontractor’s compliance with safety requirements, stop a contractor’s work for failure to observe safety measures and remove a contractor from a jobsite. In concluding that Summit retained such authority and control, the judge noted that Summit could hire and fire subcontractors, controlled the quality of the work, was authorized to correct deficiencies in the work of its subcontractors and conducted injury investigations for employees of subcontractors.
The judge further noted Summit’s supervisory role and its repeated instructions to All Phase, with which All Phase complied, to correct its scaffolding practices. None of the All Phase personnel ever refused any of Summit’s requests concerning safety, which demonstrated an acknowledgement by All Phase of Summit’s control and authority.
Summit’s attempt to shift safety responsibilities to All Phase through the subcontract could not overcome the conclusion that Summit retained supervisory authority and control. Importantly, the judge noted that an employer cannot contract away its OSHA responsibilities. Moreover, Summit’s contract with the owner acknowledged its responsibility for the safety of subcontractors’ employees. Thus, the administrative law judge affirmed the assessment against Summit for All Phase’s violation of the OSHA scaffolding and fall protection regulations.
Summit’s Appeal Before the Occupational Safety and Health Review Commission
The OSHRC reviewed the administrative law judge’s decision, focusing not on the relevant contractual language but on the apparent conflict between OSHA’s multi-employer worksite doctrine and 29 C.F.R. § 1910.12(a).
Specifically, the Review Commission focused on § 1910.12(a)’s requirement that “each employer shall protect the employment and places of employment of his employees.” This language meant, in the Review Commission majority’s view, that Summit was responsible for Summit employees and All Phase was responsible for All Phase employees, but neither was responsible for the safety compliance of the other under the regulation. The OSHRC therefore reversed the administrative law judge’s decision and vacated the citation issued against Summit, bringing clarity to the enforcement of a regulation for which enforcement in the past had been anything but consistent. Doing so required an explanation by the Review Commission of the origins of OSHA’s current application of § 1910.12(a).
History of OSHA Regulation, 29 C.F.R. § 1910.12(a)
In addressing and resolving the long-standing conflict between 29 C.F.R. § 1910.12(a) and OSHA’s multi-employer worksite doctrine, as well as to illustrate the need for such resolution, the Review Commission first explained the history and evolution of OSHA’s application of § 1910.12(a). In 1971, at the same time § 1910.12(a) took effect, OSHA issued its first Field Operations Manual (FOM), which permitted the citation of an employer who causes or creates a hazardous condition or supplies hazardous equipment, whether or not its own employees are exposed. Less than six months later, the reference to unsafe equipment was removed. About three years after that, in 1974, the FOM was amended to permit citation of employers only if they exposed their own employees to the hazardous condition, even if that employer created the hazard.
In 1976, however, the OSHA Commission decided Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1188, 1975-76 CCH OSHD ¶ 20,691, p. 24,791 (No. 12775, 1976), determining that the general contractor is typically best situated to eliminate jobsite hazards either through its own resources or by virtue of its supervisory capacity such that the general contractor would be held liable for those violations it could reasonably have expected to prevent or eliminate through its supervisory duties. Over the following several years, this language was used and expanded to find contractors liable for a wide variety of safety violations on multi-employer construction sites on the basis of their supervisory capacity.
In an effort to eliminate confusion and the inconsistency between Grossman Steel and the existing FOM language, OSHA issued a revised FOM in 1983. The new FOM established that an employer on a multi-employer construction site could avoid liability by demonstrating that it did not create the unsafe condition, could not correct the condition and had tried to persuade the controlling employer to eliminate it or had alerted employees to the dangers posed by it. Liability should instead attach to the exposing employer. Eleven years later, in 1994, OSHA issued the multi-employer worksite policy at issue in the Summit case. The policy clarified that citations should be issued to exposing employers as well as creating, controlling and correcting employers, regardless of whether their own employees were exposed.
The Review Commission’s Application of § 1910.12(a) in Summit
The Review Commission in Summit found this latest interpretation of § 1910.12(a) to be overly broad, “allow[ing] citation of essentially every employer who might have some association with the hazard.” The Review Commission also noted that OSHA never explained the reasons behind the multiple changes in policy over the years. Even more surprising is that at no time in the over twenty years between the implementation of § 1910.12(a) and the latest version of the multiemployer worksite policy did OSHA ever acknowledge the apparent conflict between the two.
The Review Commission determined that the terms of the regulation were entitled to primacy over OSHA’s policy-driven compliance guidelines embodied in the multi-employer worksite doctrine. Important to this determination was the fact that OSHA’s compliance guidelines were ever-changing, whereas § 1910.12(a) had never been amended. Thus the Review Commission concluded that the limited reach of § 1910.12(a), which by its terms applies only to an employer’s own employees, precluded the issuance of a citation to a general contractor like Summit whose employees were never exposed to the hazard. Accordingly, the OSHRC found in Summit’s favor, reversed the administrative law judge’s decision and vacated the citation.
A Historic Change for Contractors
The Summit case dramatically altered OSHA’s regulatory and enforcement capacity. Before the decision, a general contractor could be cited and fined for the safety violations of virtually any subcontractor, tradesman or laborer on the jobsite. Today, unless the general contractor’s own employees are exposed to the hazardous condition, OSHA will have a far more difficult time holding the general contractor liable. Indeed, the historical significance of the Summit decision formed the basis for a dissenting opinion, whereby one of the commissioners lamented that the OSHRC had “reversed over thirty years of Commission precedent…[and] deprived [OSHA] of a very important tool to hold accountable those often in the best position to ensure safety on construction worksites.”
According to the Commission majority, however, the plain language of § 1910.12(a), was not a tool OSHA was entitled to use in the manner that it had. The multi-employer worksite doctrine created a dangerous legal environment for general contractors, exposing employers to liability for jobsite conditions not of their making and over which they may have had no practical control or knowledge. The Summit decision provides a much-needed safety net for these employers, resolving the decades-long inconsistency in OSHA’s application of § 1910.12(a).
What Summit Means for Construction Contractors
The Summit decision represents a substantial change for OSHA’s construction jobsite inspection and citation practices. It will require OSHA to determine with more diligence and precision which entity may be cited for a particular violation. Conversely, general contractors may perhaps feel less obligated to oversee the safety of the work practices of their subcontractors. Nevertheless, in the end, jobsite safety should be a concern and on-going practice for everyone on the project. It is economic in the long term, and socially responsible all the time. Liability, however, should attach to those the law holds liable, and not to others the law does not hold liable.
The information or opinion provided in this article is the author's own and not necessarily that of Watt, Tieder, Hoffar & Fitzgerald, LLP. The author is solely responsible for the information and opinion that he or she has provided. The information contained herein does not replace seeking specific legal counsel to directly address individual client needs.
Watt, Tieder, Hoffar & Fitzgerald is one of the largest construction law firms in the world, with a practice that encompasses all aspects of construction contracting, claims and disputes resolution, and transactional legal services. WTHF principally represents large general contractors, design firms, and sureties throughout the country and internationally.
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