The issue of when OSHA can fine a general contractor for safety violations committed by a subcontractor on the general’s jobsite has been the source of continuing disputes between OSHA and the construction contracting community. The current OSHA manual and its multi-employer worksite policy contains four citation policies which would provide for fines directed at the exposing employer, the correcting employer, the creating employer, and the controlling employer. However, when such policies have been applied, contractors have generally taken the position that OSHA should not enforce a duty against a general contactor except where the safety violation exposes the general’s own employees in some manner or form.
In Solis v. Summit Contractors, Inc., the Eighth Circuit Court of Appeals examined a situation in which Summit was the general contractor for the construction of a college dormitory. It had only four employees at the construction site, including a project superintendent and three assistant superintendents. It contracted the exterior brick masonry work to a separate company. On two or three separate occasions, the Summit’s project superintendent had observed the subcontractor’s employees operating without personal fall protection on scaffolds that lacked guardrails. The subcontractor was advised to correct the problems, but did not do so.
Subsequently, an OSHA inspector issued Summit a citation for a violation by the subcontractor of the applicable regulation based upon the “controlling employer” citation theory.
Interestingly enough, although the Administration Law Judge upheld the citation, the OSHA Review Commission overturned it, holding that the applicable regulation requires each employer to protect only its own employees.
Upon review, the Eighth Circuit overturned the Review Commission’s findings and found that Summit could be fined. Their analysis turned on a very technical reading of the regulation in question which, the Court concluded, demanded that the general contractor protect both “employment” and “places of employment”. They found that language to mean that the general contractor had a duty to protect more than the “places of employment”, which would have applied to its own employees, but also to “employment” on the jobsite in general.
The Court noted, in passing, that there may be an argument that OSHA did not lawfully establish its multi-employer workplace policy, since it had not first adopted it through required informal rulemaking procedures. However, since that argument had not been properly raised during the appeal, the Court did not decide on it. The Court observed that it is uncertain what potential benefits were gained by OSHA in citing both a subcontractor and a general contractor for a single violation when the general had informed the subcontractor of the violation on several occasions. It also noted that the “controlling employer citation policy” placed an enormous duty on the general contractor to monitor all employees in all aspects of a worksite. Despite those misgivings, it concluded that concerns about that policy should be addressed to Congress or the Secretary of Labor and not to the Courts, and upheld the citation against Summit. A strong dissent was written.
The Summit decision confirms that general contractors remain at risk for safety violations occurring on the jobsite as the “controlling employer” even if they did not create those hazards or have the obligation to correct them, and regardless of whether their own employees are exposed to the hazard.