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#99:  General Contractors' OSHA Liability for Subcontractors' Violations

3/28/2021

22 Comments

 
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.

22 Comments
Mesasurveyor.com link
1/18/2022 08:32:21 am

The safer course from a liability standpoint is also the safer course from an accident standpoint: regardless of what your subcontractors say, make some effort to monitor hazardous job conditions created by others.

Reply
Gregg Martin link
2/9/2022 06:00:48 am

It's good to know that this is implemented OSHA Liability for Subcontractors' Violations.

Reply
Luis Manzano link
3/1/2022 02:19:34 am

I'm glad I came across this blog. Thanks!

Reply
liana link
11/28/2022 03:11:46 am

thanks for info

Reply
Iris Smith link
5/25/2023 12:28:29 am

I appreciate you stating that the general contractor on a residential roofing project entered into a subcontract that assigned safety responsibility to the installing sub and stated that the GC "cannot reasonably be expected to prevent, detect, or abate violative conditions by reason of its limited role on the project." My mother claims that there is a leak in her roof. I'll give the residential roofing company a call to have her roof inspected and fixed.

Reply
General contractors in Atlanta link
8/28/2023 03:37:16 am

We are a full service General Contracting company specializing in residential, commercial; home and office remodeling, repairs and renovation. We offer design and build services providing conceptual, structural and logistical support from start to finish. Our goal is to realize the needs of the homeowner and provide a quality, well executed home or office maintenance and/or renovation project. In addition, we provide services for commercial renovation including retail stores, apartment buildings, factories and offices.

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ceiling drywall repair near me link
10/20/2023 06:12:29 pm

Hey there! The decision was quite interesting as it looked into whether the GC was aware of safety issues and if its measures to address them were reasonable. According to the OSHRC, the GC didn't need to constantly monitor the situation, and even an occasional review of its sub's performance wouldn't have revealed the sub's violations. Hope that makes sense!

Reply
swimming pool rendering link
11/3/2023 02:54:44 am

Most construction companies, especially those that are small to medium-sized, operate in a very noncompliant manner. OSHA is aware of the fact that it is a fact. This explains why construction-related inspections account for 60% of all OSHA inspections, and why fines are assessed in roughly 90% of these inspections. A mandatory $4,000–7,000 fine is assessed for each of the three to eight serious violations they find on average (the fines are set to increase to $13,653 apiece in 2016). This means that each inspection results in an average fine of between $15,000 and $50,000. However, if they discover any Willful or Repeat infractions, which are subject to statutory fines of more than $136,000 each, the amount may be substantially greater!

Reply
water damage drywall link
11/3/2023 06:04:42 pm

Thanks for this information! As a contractor, i am now aware with the possible liability for my subcontractors.

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12/16/2023 05:53:30 am

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Tennis Court Construction Portsmouth & Hampshire link
1/23/2024 09:05:42 am

The discussion on the dilemma faced by general contractors regarding safety responsibilities and the need for reasonable measures is insightful. The article highlights the importance of proactive safety monitoring to avoid liability.

Reply
drywall removal link
1/26/2024 07:56:00 pm

Thanks for your efforts education contractors like us about this violations.

Reply
Tennis Court Construction Wiltshire link
1/31/2024 09:36:13 pm

The StormForce case underscores the challenges for general contractors in maintaining a balance between supervisory responsibilities and avoiding "controlling employer" status. It emphasizes the importance of proactive safety measures to mitigate both liability and potential accidents.

Reply
concrete installation link
2/22/2024 04:41:19 am

Hey there! The decision was quite interesting as it looked into whether the GC was aware of safety issues and if its measures to address them were reasonable.

Reply
call now link
3/3/2024 02:13:24 am

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Pokedoku link
3/6/2024 09:01:21 am

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Sunderland Tiling Contractors link
3/22/2024 05:56:41 am

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Marietta dryall removal link
3/29/2024 06:07:30 pm

Thank you for the reminder! Every general contractors must know about this!

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https://www.sunderlandtilers.co.uk/wood-floor-fitting link
4/13/2024 04:00:25 am

Welcome to Sunderland Tiling Contractors, your go-to destination for exceptional floor tiling services in the UK. Our expertise transforms ordinary floors into stunning, durable, and functional masterpieces.

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tape and texture drywall link
5/10/2024 06:43:43 pm

The safer course from a liability perspective is also the safer course from an accident perspective.

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Riverside drywall company link
9/27/2024 10:29:32 pm

It's good to know that this is implemented OSHA Liability for Subcontractors' Violations.

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