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The Secretary of Labor's (the "Secretary") policies related to
the multi-employer worksite doctrine have exposed general
contractors to varying degrees of liability for OSHA violations
by subcontractors, regardless of whether a general contractor's
own employees were exposed to the unsafe work
condition. Specifically, the Secretary has reasoned that general
contractors should be held responsible for the work environments
provided by their subcontractors because the general
contractor has "control" over worksite safety.
In Secretary of Labor v. Summit Contractors, Inc., OSHRC
Docket No. 03-1622 (June 14, 2004)
however, the Occupational Safety
and Health Review Commission
("OSHRC") held that a general contractor
is only responsible for protecting
"the employment and places
of employment of each of his employees
in construction work." In
other words, a general contractor
cannot be cited for the unsafe working
conditions created by a subcontractor
unless the general contractor's
own employees are exposed to
the unsafe condition.
Summit Contractors, Inc. ("General
Contractor") subcontracted with All
Phase Construction, Inc. ("Subcontractor") to perform masonry
work (the "Work") on the construction of a college
dormitory in Little Rock, Arkansas. Subcontractor used scaffolding
to perform the Work, though it did not place guardrails
on the scaffolding at all times as required by OSHA. An
OSHA compliance officer ("Officer") observed this unsafe
condition on June 18 and 19, 2003. The Officer did not complete
a walkaround inspection until June 24, 2003, at which
time the scaffolding violations had been corrected. Nevertheless,
the Officer issued a citation to General Contractor for
violation of a safety standard as a "controlling" employer in
accordance with the multi-employer worksite doctrine for the
Officer's previous observation of the unsafe scaffolding. The
Officer also issued a citation to Subcontractor, who did not
contest the citation.
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General Contractor did contest the citation, arguing that the
multi-employer citation policy could not be enforced against
it, because the policy as-applied conflicted with 29 C.F.R.
§ 1910.12(a) which provides, "Each employer shall 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."
(Emphasis added.) General Contractor reasoned that
because its employees were not exposed to the unsafe condition,
the citation was inappropriate and contrary to 29 C.F.R
§ 1910.12(a).
The OSHA administrative law judge to whom General Contractor
appealed the citation rejected General Contractor's
argument, upholding the citation. The judge cited other cases
in which general contractors had been held liable under the
multi-employer worksite doctrine for unsafe working conditions
created by their subcontractors and reasoned that such
citations must be permissible. General Contractor then appealed
to the OSHRC.
The OSHRC vacated General Contractor's citation, finding
the Secretary's reliance on the multi-employer worksite doctrine
impermissible in light of 29 C.F.R. § 1910.12(a). The
OSHRC first noted that the Secretary failed to consistently
apply one interpretation of the multiemployer
worksite doctrine, resulting
in a "checkered" interpretive
history. Moreover, the Secretary
took no steps to clarify or correct
several judicial decisions finding
that 29 C.F.R. § 1910.12(a) precluded
citing an employer for an
OSHA violation unless its own employees
were subject to the unsafe
condition. The OSHRC reasoned
that the Secretary's failure to clarify
this conflict amounted to an assent to
the judicial understanding of 29
C.F.R. § 1910.12(a).
The importance of this decision cannot
be understated, as it provides general contractors protection
from being cited for the unsafe conditions created by
subcontractors. It should be noted that, in this case, if General
Contractor's employees worked on the unsafe scaffolding,
General Contractor could have been cited for the unsafe
condition. Moreover, this opinion should not be construed as
a universal defense to a citation, as the circumstances of each
alleged violation may vary and as new legislation may eliminate
this conflict in the future. What remains to be seen, however,
is whether the Secretary will accept the OSHRC's position
and, if not, what the circuit courts of appeal will do when
given the opportunity to rule in a multi-employer case.
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