September 17, 2007

By a 2 to 1 vote, the federal Occupational Health and Safety Review Commission has dramatically altered the ability of the Occupation Safety and Health Administration (“OSHA”) to cite general construction contractors for safety violations committed by its subcontractors. The Review Commission has uprooted OSHA enforcement policy that goes back 30 years. Secretary of Labor v. Summit Contractors, Inc., OSHRC Docket No. 03-1622 (decided April 26, 2007).

Background: Safety Challenges Facing the Construction Industry
Construction jobsites can be dangerous workplaces. Supervising the specialized jobsite work performed by subcontractors, the general contractor’s role is to make sure all jobsite tasks fit together and keep on schedule. Opportunities for accidents and injury are plentiful, however, raising the question: To what extent does the general contractor bear responsibility for safety violations committed by its many subcontractors?

OSHA has grappled with this issue since shortly after the passage of the Occupation Safety and Health Act in 1970. In 1971, the Secretary of Labor issued a regulation requiring that “each [construction industry] employer . . . protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.” 29 C.F.R. § 1910.12(a). The principle appeared simple enough. Under Section § 1910.12(a), each jobsite contractor was to bear responsibility for the administration of its own safety program and for protecting the safety of its own workers against jobsite hazards and exposure. Put another way, no jobsite contractor would suffer liability for the safety misdeeds of another.

Over the years, however, OSHA took a more aggressive approach to construction safety. By 1994, federal OSHA revised its Field Inspection Reference Manual, stating that citations could be issued to any jobsite employers “creating, controlling and correcting employees,” regardless of whether or not the employer’s own employees were exposed to the workplace hazard. OSHA Field Inspection Reference Manual (FIRM) §VC6 (September 26, 1994); see also, OSHA Instruction CPL 2-0.124 (December 10, 1999) (containing identical language and the current multiemployer workplace policy). This “multiemployer worksite doctrine” has been further interpreted to mean that a “controlling” jobsite contractor may be cited for an OSHA violation occurring at the site of construction where, in OSHA’s view, it has “supervisory control over the worksite, including the power to correct safety violations itself or require others to correct them.” According to the agency, “control can be established by contract or in the absence of . . . contractual provisions, by the exercise of control in practice.” OSHA Instruction CPL 2-0.124 at x.e.1.

The Tension Resolved: The Summit Contracting Decision
OSHA’s “controlling employer” approach created a tension with § 1910.12 (a), and in Summit Contractors the Review Commission found the two incompatible.

Summit was the general contractor for the construction of dormitory buildings in Little Rock, Arkansas, and employed only supervisory staff at the worksite. It had no jobsite workers. Actual construction work was performed exclusively by subcontractors, including All-Phase Construction, Inc. which used scaffolding for its jobsite work. All-Phase was cited for allowing its employees to work without adequate fall protection devices. To all appearances, Summit was innocent of wrongdoing. While it had engaged All-Phase, Summit assumed no responsibility (contractual or otherwise) for supervising All-Phase workers or safety compliance by the subcontractor. Summit did not deny the existence of the OSHA violation. Neither did it deny that its jobsite superintendents had actual knowledge of the violation, since they were at the jobsite at the time of OSHA inspection. Although Summit neither caused nor created the violation, it received an OSHA citation for its subcontractor’s noncompliance along with All-Phase.

Summit contested the citation. At a hearing before the commission administrative law judge, Summit argued unsuccessfully that that OSHA’s multiemployer citation policy is unenforceable under § 1910.12 (a) and that it could not be held responsible simply by virtue of its contractual relationship with All-Phase.

The Review Commission overturned the ALJ’s decision and vacated the citation against Summit. Then-Chairman W. Scott Railton and Commissioner Horace A. Thompson III agreed that §1910.12 (a), although voluntarily imposed by the secretary, prohibited OSHA from invoking its multiemployer policy to cite a nonexposing employer for violation of the construction standard. However, Commissioner Thomasina V. Rogers issued a vigorous dissent. She posited that where “a general contractor exercises control over such a place of employment ... , it is reasonable to read the regulation as imposing on that controlling general contractor a duty to comply with the specific construction standard which applies to that place of employment.” Indeed, in some cases, Rogers indicated, only the general contractor could ensure safety compliance.

What Does Summit Mean for the Construction Contractor?
Summit signals a major change of direction for OSHA’s inspections of jobsite construction that can affect employer responsibilities on jobsites. General contractors who feel less constrained to assure the safety of their subcontractors, may cause the latter to become more self-reliant. They may not be able to depend on the general contractor for close safety monitoring unless this is made an express part of the subcontract. As a result, subcontractors may need to redouble their efforts to supervise workers carefully.

General contractors still may be cited for the job hazards they actually create, and remain wholly responsible for the job safety of their own workers, including supervisory personnel. Furthermore, despite the Review Commission’s decision, they have a genuine interest in overall jobsite safety. Accidents and injuries to any jobsite employee are bad for business; they increase costs, impede job completion and impair reputation, adversely affecting a general contractor when it bids its next job. Nevertheless, general contractors may not wish to assume overall safety responsibility for the project. In the end, this dilemma may prompt a general contractor to contract “safety subs” to perform oversight of safe workmanship across the entire project.

Construction jobsite safety remains a collective concern. In light of the Summit decision, all construction contractors need to consider how to meet the collective goal of jobsite safety without assuming the liabilities of others. While the decision in Summit Contractors may be overturned by legislation (a bill to amend the OSH Act, “Protecting American Workers Act,” has been reintroduced recently – H.R. 2004 – and itself could be amended to address this decision (see http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1097), court review, regulatory amendment or subsequent Commission decision, construction site safety will remain a major issue in OSH enforcement.

© 2007 Jackson Lewis LLP.  Reprinted with permission.  Originally published at www.jacksonlewis.com.  Jackson Lewis LLP is a national workplace law firm with offices nationwide.