Multi-Employer Policy Raises Questions About Scope of Employers' Liability

Author:Mr Baruch Fellner and Daniel P. Rathbun
Profession:Gibson, Dunn & Crutcher LLP
 
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Reproduced with permission from Occupational Safety & Health Reporter, 40 OSHR 859, 10/14/2010. Copyright _ 2010 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

The Occupational Safety and Health Review Commission reaffirmed and extended its approval of the Multi-Employer Citation Policy in Secretary of Labor v. Summit Contractors, Inc., which allows the Occupational Safety and Health Administration to cite construction employers for exposing another employer's workers to a hazard. The authors of this article say the decision is relatively unsurprising given long-standing trends in OSHA policy and Review Commission and court of appeals case law. However, they say the Review Commission's fresh endorsement of an established doctrine brings old questions into sharper relief and highlights uncertainties in the breadth of multi-employer liability.

Multi-Employer Policy Raises Questions About Scope of Employers' Liability

The Occupational Safety and Health Review Commission reaffirmed and extended its approval of the Multi-Employer Citation Policy in Secretary of Labor v. Summit Contractors, Inc.1 The decision, which allows the Occupational Safety and Health Administration to cite construction employers for exposing another employer's workers to a hazard, is relatively unsurprising given long-standing trends in OSHA policy and Review Commission and court of appeals case law. But the Commission's fresh endorsement of an established doctrine has brought old questions into sharper relief and highlighted uncertainties in the breadth of multi-employer liability.

Multi-Employer Policy and the Summit Decision. As outlined in OSHA Instruction CPL 02-00-124, the Multi- Employer Citation Policy allows OSHA to cite multiple employers at a single worksite for creating a hazard, or for failing to prevent or correct a hazard, even if their own workers are not exposed. Instead, a ''creating'' em- ployer is liable simply for having introduced a hazard into the workplace.2 A ''controlling'' or ''correcting'' employer is liable for hazards that it did not take ''reasonable care'' to detect and prevent.3 For example, a general contractor faces the possibility of citation where its subcontractor's employees are exposed to a hazard.4 A subcontractor faces the possibility of citation where it installed or insufficiently maintained equipment that exposed another employer's workers to a hazard.5

The Summit decision is concerned, not with the Multi-Employer Citation Policy itself, but with the doctrine's application in construction contexts. A specific OSHA standard that governs construction work says that ''each employer shall protect the employment and places of employment of each of his employees.''6 Thus, when considering an earlier citation against Summit Contractors in 2007, the Commission seized upon the italicized language to find that the Multi-Employer Citation Policy was not applicable since Summit's own employees were not exposed to the cited hazard.7 The Eighth Circuit read § 1910.12(a) differently, however, and allowed the Multi-Employer Citation Policy to apply ''so long as employees of the cited employer [were] also present [but not necessarily exposed]'' at the worksite. 8 The Commission's August 19 decision was its ''first opportunity to...

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