For many years the Occupational Safety and Health Administration (OSHA) has implemented a Multi-Employer Citation Policy, under which more than one employer at a worksite – for example, a general contractor and a subcontractor – can be cited by OSHA for the same hazardous condition. If an employer “has general supervisory authority over the worksite, including the power to correct safety and health violations,” it will be deemed a “controlling employer” who, depending on the circumstances, can be cited along with the employer that actually created the hazardous condition. The requisite “[c]ontrol can be established by contract or, in the absence of explicit contractual provisions, by the exercise of control in practice.”
Almost every general contractor will meet this test. In StormForce of Jacksonville, LLC, No. 19-0593, 2021 WL 2582530 (OSHRC March 8, 2021), a general contractor on a residential roofing contract entered into a subcontract that allocated safety responsibility to the installing sub and specified that the GC “cannot reasonably be expected to prevent, detect or abate violative conditions by reason of its limited role on the project.” But in light of the GC’s dictation of the sub’s work hours, signage, communications with the owner and the like, and particularly because its site foreman’s duties included monitoring safety issues and contacting the sub’s management if any safety concerns are observed, the Occupational Safety and Health Review Commission – the administrative arm of the Department of Labor charged with hearing appeals of OSHA citations – concluded that “controlling employer” status was present.
The low bar for finding “controlling employer” status presents something of a dilemma for general contractors. While “a controlling employer’s duty to exercise reasonable care ‘is less than what is required of an employer with respect to protecting its own employees,’” Suncor Energy (U.S.A.) Inc., No. 13-0900, 2019 WL 654129, at *4 (OSHRC Feb. 1, 2019), it must at least take “reasonable measures to ‘prevent or detect and abate the violations due to its supervisory authority and control over the worksite.’” Id. The very act of implementing such measures makes its “controlling employer” status virtually assured. And if a GC eschews them completely in an ostrich-like effort to avoid becoming a “controlling employer,” but is nevertheless found to be one, its do-nothing approach will virtually guarantee its liability for subcontractor safety violations.
If a “controlling employer” knows of a safety violation and does nothing about it, liability will follow. In StormForce, the OSHRC absolved the general contractor in part because there was no evidence that its foreman had witnessed the same lack of fall protection measures that led the OSHA inspector to cite the sub. The more interesting aspect of the decision, however, concerned whether the GC should have known, i.e., the reasonableness of its measures to detect safety issues. The OSHRC concluded that constant observation by the GC was not required, and that the occasional review of its sub’s performance would not necessarily have revealed the sub’s violations.
StormForce reinforces that it is the Secretary of Labor’s burden to prove controlling employers’ knowledge of violations and/or lack or reasonable safety review measures to catch them. And the same is true of the “controlling employer” inquiry itself. Earlier OSHRC precedent adopting a rebuttable presumption that a general contractor on a construction project is a “controlling employer” had passed muster in the courts, see R.P. Carbone Constr. Co. v. OSHRC, 166 F.3d 815, 818 (6th Cir.1998) (citing the OSHRC’s 1979 Haugan case for proposition that “[t]here is a presumption that a general contractor has sufficient control over its subcontractors to require them to comply with safety standards”) – but StormForce announced that this presumption would no longer be used: “We thus overrule Haugan to the extent that its formulation of a ‘rebuttable presumption’ is inconsistent with established precedent.”
Whether StormForce signals a pro-contractor shift at the OSHRC is debatable. For now, general contractors and construction managers would be well served not to hand off all safety-related duties to subcontractors in the hope of avoiding “controlling employer” status. The safer course from a liability perspective is also the safer course from an accident perspective: no matter what your subcontracts say, make some effort to monitor hazardous job conditions created by others.
Almost every general contractor will meet this test. In StormForce of Jacksonville, LLC, No. 19-0593, 2021 WL 2582530 (OSHRC March 8, 2021), a general contractor on a residential roofing contract entered into a subcontract that allocated safety responsibility to the installing sub and specified that the GC “cannot reasonably be expected to prevent, detect or abate violative conditions by reason of its limited role on the project.” But in light of the GC’s dictation of the sub’s work hours, signage, communications with the owner and the like, and particularly because its site foreman’s duties included monitoring safety issues and contacting the sub’s management if any safety concerns are observed, the Occupational Safety and Health Review Commission – the administrative arm of the Department of Labor charged with hearing appeals of OSHA citations – concluded that “controlling employer” status was present.
The low bar for finding “controlling employer” status presents something of a dilemma for general contractors. While “a controlling employer’s duty to exercise reasonable care ‘is less than what is required of an employer with respect to protecting its own employees,’” Suncor Energy (U.S.A.) Inc., No. 13-0900, 2019 WL 654129, at *4 (OSHRC Feb. 1, 2019), it must at least take “reasonable measures to ‘prevent or detect and abate the violations due to its supervisory authority and control over the worksite.’” Id. The very act of implementing such measures makes its “controlling employer” status virtually assured. And if a GC eschews them completely in an ostrich-like effort to avoid becoming a “controlling employer,” but is nevertheless found to be one, its do-nothing approach will virtually guarantee its liability for subcontractor safety violations.
If a “controlling employer” knows of a safety violation and does nothing about it, liability will follow. In StormForce, the OSHRC absolved the general contractor in part because there was no evidence that its foreman had witnessed the same lack of fall protection measures that led the OSHA inspector to cite the sub. The more interesting aspect of the decision, however, concerned whether the GC should have known, i.e., the reasonableness of its measures to detect safety issues. The OSHRC concluded that constant observation by the GC was not required, and that the occasional review of its sub’s performance would not necessarily have revealed the sub’s violations.
StormForce reinforces that it is the Secretary of Labor’s burden to prove controlling employers’ knowledge of violations and/or lack or reasonable safety review measures to catch them. And the same is true of the “controlling employer” inquiry itself. Earlier OSHRC precedent adopting a rebuttable presumption that a general contractor on a construction project is a “controlling employer” had passed muster in the courts, see R.P. Carbone Constr. Co. v. OSHRC, 166 F.3d 815, 818 (6th Cir.1998) (citing the OSHRC’s 1979 Haugan case for proposition that “[t]here is a presumption that a general contractor has sufficient control over its subcontractors to require them to comply with safety standards”) – but StormForce announced that this presumption would no longer be used: “We thus overrule Haugan to the extent that its formulation of a ‘rebuttable presumption’ is inconsistent with established precedent.”
Whether StormForce signals a pro-contractor shift at the OSHRC is debatable. For now, general contractors and construction managers would be well served not to hand off all safety-related duties to subcontractors in the hope of avoiding “controlling employer” status. The safer course from a liability perspective is also the safer course from an accident perspective: no matter what your subcontracts say, make some effort to monitor hazardous job conditions created by others.
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