April 2009
GENERAL CONTRACTORS REMAIN ON THE HOOK
On February 26, 2009, in Hilda Solis v. Summit Contractors, Inc., No. 07-2191 (8th Cir. 2009), the court vacated an order by the Occupational Safety and Health Review Commission (OSHRC), which held that the Secretary of Labor's multi-employer worksite policy for "controlling employers" violated agency policy. The ruling provides additional legal support for issuing citations to general contractors at construction sites who have the ability to prevent or abate hazardous conditions created by subcontractors.
Summit Contractors, Inc. was the general contractor for the construction of a college dormitory. Summit subcontracted the entire project and thus only had four employees at the construction site - one project superintendent and three assistant superintendents. On more than one occasion, Summit's project superintendent observed employees of its brick masonry subcontractor working on scaffolds that lacked guardrails without personal fall protection. The superintendent advised the subcontractor to correct the safety problems, but the subcontractor continued to engage in similar conduct. An OSHA officer subsequently observed the subcontractor's employees working on scaffolds over 10 feet above the ground without fall protection or guardrails which was in violation of OSHA regulations.
Notwithstanding that it was undisputed that Summit's employees were not exposed to any hazard created by the scaffold violation, the OSHA officer issued a citation to Summit based on the "controlling employer" citation policy. Summit contested OSHA's finding claiming that OSHA regulations place a duty on employers to protect only its employees and not those of any subcontractor. The matter was heard by an Administrative Law Judge (ALJ) and the ALJ upheld the citation. The Occupational Safety and Health Review Commission granted review of the case and determined that OSHA regulation (i.e. §1910.12(a)) precludes the "controlling employer" citation policy and therefore, by final administrative order, the citation was vacated. Unfortunately for Summit, the Secretary of Labor sought review by the court and the court reversed the order entered by OSHRC.
This case serves as a reminder to general contractors at construction sites that OSHA may issue citations to the generals for safety hazards and/or violations created by subcontractors. Thus, it is imperative that general contractors use their supervisory authority over subcontractors to prevent and abate hazardous conditions created by subcontractors irrespective of whether the general contractor's employees were exposed to the hazard or played any part in creating the hazard.
Questions? For questions or comments concerning this topic, please contact Attorney Jon D. Hoag in the firm's St. Charles office at (630) 377-1554, or
johoag@wesselssherman.com.
