By: Thomas H. Welby Published: October 2010

Safety Policy: In a Split Decision, the OSH Review Commission Reaffirms OSHA%u2019s Multi-Employer Policy

Forty years after the passage of the OSH Act, there remains no definitive answer to a question of considerable practical importance.  On a multi-employer jobsite, does responsibility for OSHA compliance rest singly with each employer (such responsibility being limited to its own employees)?  Or does responsibility extend to any employer that creates a hazard, or controls an area in which there exists a hazard ? even if none of its own employees are exposed?

Posed another way, does the Act create a duty on the part of each employer to direct the work of others’ employees as necessary to ensure OSHA compliance, overriding the rule that each trade controls its own employees, and is responsible for its own means and methods?

In the first years following the enactment of OSHA in 1970, the Commission held (in the words of one 1973 decision) that Congress did not intend to go so far as to make a contractor who subs out work (while retaining control of the jobsite) “responsible for the safety and health of working men and women who do not work for him, who are not subject his direction and control, who are not on his payroll and who cannot be discharged by him.”

In the years that followed, however, the Secretary promulgated instructions to enforcement personnel, creating what became to be known as its “Multi-Employer Policy” (“MEP”).  This authorized citations to employers for violations they had created, or in areas under their control, even if none of their own employees had been exposed.

Changing his view, former Commissioner Cleary (who had joined in the unanimous decision quoted above, confining OSHA liability to the employment relationship) in a series of opinions in the 1970s proposed several theories expanding liability beyond the traditional employment relationship.  One such theory was that, in order to accomplish the remedial purpose of the OSH Act, “employee” should not be construed “solely according to common-law concepts of master and servant.”  For purposes of the OSH Act, he argued, “employees of a subcontractor should be considered the employees of the general or prime contractor.”

This broader view of OSHA liability came to be the prevailing one, and found wide approval in the Courts of Appeals.

The standard came to be one holding employers responsible for violations of other employers when they “could reasonably be expected to prevent or detect and abate the violations” thanks to their “supervisory authority and control over the worksite.”

In 2007, however, in a split decision, the Commission (in what came to be known as the “Summit I” case) construed 29 C.F.R. § 1910.12(a) ? the applicability provision for OSHA’S construction standards ? as limiting a construction employer’s duties to its own employees. 1

Summit I” became “Summit II” when the Commission’s determination was reversed by the U.S. Court of Appeals for the Eighth Circuit in St. Louis.  The Eighth Circuit decision ? technically controlling only within that Circuit ? reasoned that permitting the issuance of citations to employers whose own employees are not exposed to the hazard is justified by the mandate of § 1910.12(a) to protect not only employees, but “places of employment.”

In 2005, Summit Contractors, the employer involved in Summit I and II, was cited for a new violation.  Summit was general contractor on a project on which it subbed out nearly all of the work, having onsite only a superintendent and assistant superintendent.  Summit’s subcontracts provided that Summit “may provide . . . temporary electrical services” which the subcontractor would “make use of . . . as provided.”
Summit provided a rented portable generator and a spider box.  Summit’s super did not request that the generator be equipped with a ground fault circuit interrupter, and did not inspect it for GFCI protection when it was delivered.   The rented equipment was put into service, with the framing sub’s employees using portable electric tools that they plugged into the spider box.

OSHA cited Summit for violating the electrical standard mandating GFCI protection.  After a hearing, the ALJ affirmed the citation, and assessed the proposed penalty.  Neither of the two Summit employees on the project was among the employees exposed.

The Commission saw this case, which will presumably go down as “Summit IV2 as appropriate for a reconsideration of “Summit I.”  In this newest case, a 2-1 majority of the Commission overruled its prior decision in Summit I, approved the Eighth Circuit’s reasoning in Summit II, and affirmed the citation.
In addition to making the familiar invocation of the remedial purpose of OSHA, the Commission rejected Summit’s threshold argument that the U.S. Supreme Court decision in Nationwide Mutual Insurance Co. v. Darden (1992) precludes the imposition of OSH Act liability.

Darden reaffirmed a rule that terms in statutes having familiar common-law meanings should be construed accordingly, unless Congress has provided a different definition.  The Act’s definition of an “employee” is essentially the common-law one. Summit argued that, since it did not control its subcontractors’ employees, the latter could not meet traditional agency law criteria for master-servant relationships, and hence there could be no OSH Act liability.

The majority in Summit IV all but breezed past Darden, relying chiefly on an argument that the focus of the OSH Act is on workplaces, and a 2007 Third Circuit case that pronounced Darden to have “no impact” on whether the Act covers workers other than common-law employees of the employer.
Commissioner Horace A. Thompson’s dissent in Summit IV argues persuasively that the MEP arose from former Commissioner Cleary’s 1970s dissents (which, by 1975, won Commission approval in theGrossman Steel case) and represented a choice, based expressly on policy considerations, to define “employer” and “employee” broadly, to accomplish the Act’s remedial purpose.  However, to be consistent with Darden, liability should have to require not just that the employer control the overall work ? it must control the workers.  That necessitates a traditional employer-employee relationship, which ought to nullify the MEP.

As for the majority’s treatment of § 1910.12(a), Commissioner Thompson’s dissent cites two D.C. Circuit cases that noted (although they did not expressly rule) that “the relevant regulation by its terms only applies to an employer’s own employees . . . leaving little room for invocation of the [MEP].”  The dissent also points out that the Secretary’s “controlling employer” theory imposes an obligation different from that imposed by the Act, or by § 1910.12(a).  “It is one thing to protect employees by complying with appropriate standards,” the dissent notes, but “it is quite another to protect employees by requiring others to comply.

The dissent also ably refutes the Eighth Circuit’s analysis that seized upon the term, “places of employment” (and the rule of statutory interpretation that disfavors interpreting any terms in a statute as meaningless or redundant) as necessarily implying a duty to all employees, not just one’s own, in the employer’s workplace.  The dissent likens the Eighth Circuit’s approach to “slicing a single word from a sentence, mounting it on a definitional slide, and putting it under a microscope in an attempt to discern the meaning of an entire statutory provision.”

In its context, the dissent concludes, the reference to “employment and places of employment” means that employers should protect their own employees from the full array of risks, by complying with the Part 1926 standards.  It is exorbitant to construe “places of employment” as extending the employer’s duty to include employees other than or in addition to its own.

While I read Commissioner Thompson’s dissent in Summit IV as discrediting the MEP as an impermissible expansion of OSHA’S powers, it also makes a strong practical argument for limiting liability to the affected workers’ own employer, who will more often be in a readier position to identify hazards (and have the technical know-how to correct them).

While I will not be surprised if Commissioner Thompson’s views gain acceptance in the Courts of Appeals leading, eventually, to the overthrow of the MEP, for the time being you must continue to presume that you may be cited for violations as a “creating” or “controlling” employer, even if none of your own employees are exposed.

1 Section 1910.12(a) states, in relevant part, that “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.”

2 “Summit III” was the case of “Summit II” on remand to the Commission, which upheld the citation.

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