8th Circuit Overrules Review Commission Multi-Employer Case

Many of us in the construction industry have strong opinions on the citing of a "controlling contractor" for the "sins of its subcontractors." That doesn't mean that we think a general contractor should ignore safety violations by its subcontractors, but we do believe that it is generally unfair to receive a citation for violations by subcontractors.

For the Safety Director of a general contractor, overseeing safety on a multi-employer jobsite is a little like "herding cats." No matter how much we rant and rave, assuring compliance by employees not under your direct control is difficult at best. While it is true that the subcontractor signs an agreement with the general contractor promising to comply with "generally accepted safety guidelines" (i.e., OSHA), it is sometimes impossible to control. In this recession marketplace, control is a little easier, but if a subcontractor defaults on his subcontract and walks off the job at a critical phase, it could put the entire project at risk.

We know that you should not put a cost on safety, but the reality of the construction world is that we build buildings, et al to make money. Often, no matter how hard we try, when you turn your back, safe practices are ignored.

That said, my experience with OSHA is that they have used the multi-employer citation policy to excess, but the potential to do so is there.

Anyway, EHS Today magazine reported today that "The U.S. Court of Appeals for the Eighth Circuit, in a 2-1 decision, ruled that in the case of Elaine Chao v. Summit Contractors, OSHA regulation 29 C.F.R. Sec. 1910.12(a) “is unambiguous in that it does not preclude OSHA from issuing citations to employers for violations when their own employees are not exposed to any hazards related to the violations.” Therefore, according to the ruling, the Occupational Safety and Health Review Commission (OSHRC) “abused its discretion in determining that the controlling employer citation policy conflicted with the regulation.”

To read the whole article, click here.