If you’ve ever encountered a hazardous situation while working as a subcontractor on a job site and wondered where the buck stops for liability—a recent court ruling says that it could be with the general contractor. U.S. Department of Labor Secretary Alexander Acosta asked the United States Court of Appeals for the Fifth Circuitto decide whether he has the authority, under either the Occupational Safety and Health Act (the Act), or Occupational Safety and Health Administration (OSHA) regulations, to issue citations to general contractors, at multi-employer worksites with hazardous work conditions—even when those conditions affect another employer’s employees. The court concluded that the Secretary of Labor does have that authority under the Act.

The Secretary’s request and eventual court ruling stem from a case in which Hensel Phelps Construction Co. entered into a contract with the City of Austin, to build a new public library in 2010. The company’s onsite management personnel, including superintendents, project engineers and project managers, maintained control of the jobsite, while Hensel Phelps contracted with subcontractor Haynes Eaglin Watters (HEW) to do work on a substation screen wall in 2014. According to court documents, later that year, HEW contracted with sub-subcontractor CVI Development, to complete demolition and excavation required for the wall. OSHA cited both CVI and Hansel Phelps for willfully violating regulations, by exposing employees to a cave-in hazard from an unprotected excavation at a construction site. The citation against Hensel Phelps was pursuant to OSHA’s multi-employer citation policy, under which an employer who causes a hazardous condition—who should have detected and prevented a violation through the reasonable exercise of its supervisory authority—may be cited for a violation, whether or not its own employees were exposed to the hazard.

The administrative law judge for the Occupational Safety and Health Review Commission’s Denver regional office used the ruling for Melerine v. Avondale Shipyards Inc. as part of its decision in favor of Hensel Phelps in April 2017. In the Melerine ruling by the 5th Circuit in 1981, it was decided that OSHA regulations only protect an employer’s own employees, but the Department of Labor appealed the Denver regional office’s decision. In the recent appeals court decision, the court examined Melerine v. Avondale Shipyards Inc., ruling that the “court’s prior construction of the act was just a choice of one side of a ‘complex debate.’”

Hensel Phelps believes that Acosta’s interpretation of the act, authorizing the controlling employer policy, would, “force general contractors to assert control over the activities of subcontractors,” increasing their liabilities. The court says that no controlling-employer citation under 29 USC 654(a)(2) would affect Hensel Phelps’ common law duties as an employer and that a reversal of Melerine is warranted.

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