THE “CONTROLLING EMPLOYER” POLICY
General contractors should think twice about the practices of subcontractors on their worksites as a result of a recent ruling by the United States Court of Appeals for the Eighth Circuit. In Solis v. Summit Contractors, Inc., the general contractor employed a project superintendent to supervise a worksite on which a subcontractor was employed. The project superintendent witnessed employees of the subcontractor working on scaffolding without fall protection, and advised them to correct the hazard. Although the subcontractors corrected the hazard, each time they relocated the scaffolding to a different area on the site, they continued to omit fall protection in violation of the general contractor’s notice. The court held that the project superintendent’s warning to the subcontractor’s employees was not sufficient to avoid liability because the employees of the subcontractor recreated the hazard. The general contractor was cited even though its employee had issued a warning and the hazard had been corrected. The citation was issued to the general contractor whose only employees on the job site were supervisory in nature and were not exposed to the hazard.
The Eighth Circuit upheld this citation, affirming a policy that allows the Occupational Safety and Health Administration (OSHA) to issue citations to general contractors for hazardous conditions created by subcontractors. This policy applies to all “controlling” employers who have the ability to reasonably exercise supervisory authority over a site, regardless of whether the general contractor created the hazard or its own employees were exposed to the hazard.
The court concluded that the regulation, 29 C.F.R. § 1910.12(a), did not preclude OSHA from issuing citations to employers, even when their own employees were not exposed to the hazards for which the employer was cited. The court deferred to the Secretary of Labor’s interpretation of the regulation, and upheld the citation.
The regulation establishes a duty of employers to protect the construction sites where they have employees, and the regulation does not limit the employer’s duty to protect only the employer’s own employees. For example, in Summit Contractors, Inc., because the general contractor had subcontracted the entirety of building a college dorm, it had only four of its own employees working at the construction site: a project superintendent and three assistant superintendents. However, the court held that this was sufficient to meet the requirements of the “controlling employer” regulation. An employer’s duty to protect the place of employment includes nonemployees at the place of employment so long as the employer also has employees at that place of employment. The duty is not based on an employer-employee relationship.
WHO IS A “CONTROLLING EMPLOYER?”
A general contractor is a “controlling employer” when it possesses a general supervisory authority over a worksite, including the power to correct safety and health violations itself or to require others to correct them. This authority may be conferred explicitly in a contractual relationship, or by the exercise of control in practice over the site. In Summit Contractors, Inc., the project manager specifically witnessed the employees of subcontractor working on scaffolding without fall protection, and advised them to correct the hazard. After correcting the hazard, the subcontractor’s employees continued to operate without fall protection each time they moved the scaffolding to a different location on the construction site. It was sufficient that there were only four employees of the general contractor present at the construction site because the project superintendent acted in a supervisory capacity and possessed the authority to exert control over the safety conditions on the worksite.
DUTIES IMPOSED
A controlling employer has a duty to exercise reasonable care to prevent and detect violations on the site.
General contractors should:
- Make frequent inspections of the worksite.
- Implement an effective system for promptly correcting hazards.
- Enforce the subcontractor’s compliance using a clear system and follow-up procedures.
This regulation places a heavy responsibility on employers to monitor all aspects of a construction site and maintain vigilance of potential hazards, even those that they and their employees did not create.
OSHA ENFORCEMENT AND PENALTIES
The Secretary of Labor, through OSHA, creates and enforces workplace health and safety standards. If the Secretary determines that an employer has failed to comply with a standard, the Secretary may issue a citation and assess a penalty.
If your worksite is cited for a violation, you may be subject to a citation and penalties including fines of up to $70,000 and imprisonment.
CITATION PROCESS
After an OSHA inspection at the worksite, the compliance officer will report their findings to the area director. The area director will then determine what citations, if any, will be issued, and what penalties, if any, will be proposed.
When a citation is issued, the employer will receive certified mail with notification of the citation and proposed penalties. The citation will inform the employer and employees of the regulations and standards alleged to have been violated and will set a period of time for correction. The employer must post a copy of each citation at or near the place a violation occurred, for three days or until the violation is corrected, whichever is longer. The employer will have an opportunity to contest the citation within fifteen days of its issuance.
PENALTIES
A controlling employer, if cited for the actions of a subcontractor, is exposed to all penalties assessed under OSHA. The severity of the penalty imposed directly relates to the type of violation. Penalties can be discretionary within each category, and the severity of the penalty will depend on factors such as demonstrated efforts to comply with the Act, whether previous violations have been documented, the gravity of the alleged violation, and the size of the business. The below violations and their penalties are set forth at 29 U.S.C. § 666.
- Willful Violation – A violation is determined to be “willful” when the employer knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it. Penalties of up to $70,000 may be proposed for each willful violation, with a minimum penalty of $5,000 for each violation.
- Willful Violation; Death Resulting – If an employer is convicted of a willful violation of a standard that has resulted in the death of an employee, the offense is punishable by a court-imposed fine of up to $10,000 or by imprisonment for up to six months, or both.
- Serious Violation – A violation is determined to be “serious” where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to $7,000 for each violation is assessed.
- Non-Serious Violation – A violation is determined to be “non-serious” when it has a direct relationship to job safety and health, but probably would not cause death or serious physical harm. A penalty of up to $7,000 for each violation is discretionary and is assessed on a case-by-case basis.
- Repeated Violation – If a subsequent inspection results in the determination of a violation substantially similar to a previous violation, a penalty of up to $70,000 may be assessed for each violation.
- Failure to Correct Prior Violation – When a controlling employer fails to correct a prior violation, the penalty may be up to $7,000 for each day the violation continues beyond the imposed deadline for correction.
Additional penalties apply for falsifying records or reports, violations of posting requirements, and other types of violations. Citation and penalty procedures may differ depending on particular state standards for occupational safety.