Since the early days of enforcement of the Occupational Safety and Health Act of 1970 ("OSH Act"), 29 § U.S.C. 651 et seq., the Occupational Safety and Health Review Commission ("Review Commission") has upheld citations issued to employers alleging violations of the "multi-employer worksite doctrine." Under this doctrine, an employer having control over a worksite has a duty to ensure that other employers at the worksite comply with occupational safety and health standards. This means that a "controlling employer" may be liable for violating an occupational safety and health standard even if it neither created the hazardous condition nor exposed any of its own employees to the hazard. In a decision dated April 27, 2007, the Review Commission reversed this long-standing precedent by concluding that the plain language of 29 C.F.R. § 1910.12(a) precludes the Occupational Safety and Health Administration ("OSHA") from holding an employer engaged in construction work responsible for failing to ensure that other employers at the worksite comply with occupational safety and health standards. Summit Contractors, Inc., OSHRC Docket No. 03-1622 (2007).

Summit Contractors ("Summit") was the prime contractor for construction of a college dormitory in Little Rock, Arkansas. Summit had contracted with All Phase Construction, Inc. ("All Phase") to perform exterior masonry work on the building. An OSHA compliance officer visited the worksite and saw All Phase employees working from scaffolds without appropriate fall protection. OSHA issued a citation to Summit, alleging that it violated OSHA's construction industry fall protection standard, even though none of its own employees were exposed to the fall hazard. Applying the multi-employer worksite doctrine, OSHA contended that, as a controlling employer, Summit failed to ensure that All Phase used appropriate fall protection. OSHA also cited All Phase for violating the same standard.

On review, the Review Commission concluded that under the plain language of section 1910.12(a), an employer engaged in construction work does not have a duty to ensure that other employers at the worksite comply with construction safety and health standards. Section 1910.12(a), which defines the scope of the agency's construction industry standards, states in relevant part: "Each employer shall protect the employment and places of employment of each of his employees engaged in construction work." (Emphasis added.)

The Review Commission majority held that the phrase "his employees" means that an employer engaged in construction work is only responsible for the safety and health of its own employees. The Review Commission did not address the broader question of whether, without the limitation imposed by Section 1910.12(a), the OSH Act itself authorizes OSHA to require "controlling employers" to ensure that other employers at the worksite comply with occupational safety and health standards. Thus, the Review Commission did not address the viability of the multi-employer worksite doctrine outside the construction industry, an issue that some commenters view as becoming increasingly important as more employers in all industry sectors contract out segments of their work.

OSHA has filed a petition to review Summit Contractors in the U.S. Court of Appeals for the Eighth Circuit. In the meantime, OSHA takes the position that it remains free to issue citations to controlling employers under the multi-employer worksite policy in those circuits that have endorsed it. It will have a difficult time enforcing any such citations before the Review Commission, however, because the decision will remain Commission precedent unless the Supreme Court reverses on appeal. See, e.g., Grossman Steel & Alum. Corp., 4 BNA OSHC 1185 (No. 12775, 1976)(holding that administrative law judges shall follow Review Commission precedent unless the Supreme Court reverses on appeal). Of course, the Review Commission could overrule its decision in a subsequent case in the future. This has happened before with respect to the multi-employer worksite doctrine.

Counsel on all sides of the issue agree that the decision is a significant reversal of over thirty years of Review Commission precedent. They disagree, however, on its practical effect.

Management attorneys argue that Summit will ultimately result in safer workplaces, since general contractors will no longer be reluctant to exercise control over safety at a worksite at the risk of being held responsible by OSHA. Another practical effect cited by management attorneys is that employers receiving "controlling employer" citations will attempt to demonstrate that they were engaged in "construction work" in order to avoiding liability, taking advantage of the statute's broad definition of "construction work" as "work for construction, alteration, and/or repair, including painting and decorating." Section 1910.12(b).

Union attorneys view the decision as undermining, rather than promoting, safety on multi-employer sites, pointing out that the general contractor is often the only employer on the site with the legal authority, the on-going presence, and the resources to ensure that each of the various subcontractors performs in a manner that safeguards both its own employees and other employees working nearby. They argue that the decision also undercuts OSHA's ability to leverage its chronically inadequate compliance resources by looking to the entity with responsibility for the overall functioning of the worksite to ensure safety on the site.

Under the OSH Act, twenty-two states have opted to operate their own safety and health programs. Although the Review Commission's decision is not binding authority in these "state plan" jurisdictions, it will likely serve as strong persuasive authority. State plans and state courts often look to Review Commission precedent for guidance when presented with an issue that the Review Commission has previously addressed. See, e.g., Adkins v. Aluminum Co. of America, 110 Wn.2d 128, 143-145, 750 P.2d 1257 (1988) (opining that the Court will consider Review Commission decisions construing the federal counterpart to the Washington Industrial Safety and Health Act).

Link to decision: http://www.oshrc.gov/decisions/html_2007/03-1622.htm

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This Hot Topic was was prepared by Michael T. Taylor of the Washington, D.C. office of Arent Fox LLP and Victoria L. Bor of Sherman, Dunn, Cohen, Leifer, & Yellig, P.C. Ms. Bor represented the Building and Construction Trades Department of the AFL-CIO in the Summit case. Mr. Taylor previously served as acting general counsel of the Review Commission and as chief legal counsel and special advisor to the chairman of the Review Commission.