C. Stephen Tobin
PAXSON & ASSOCIATES, P.C.
2240 Bissonnet Street
Houston, TX 77005
832.615.7435
A NEW INTERPRETATION OF OSHA’S MULTI-EMPLOYER
WORK-SITE POLICY RAISES RISKS TO TEXAS BUILDERS
Managing liability for violations of the Occupational Health
and Safety Act of 1970 (the “OSH Act” or the “Act”) is something
about which every builder should be concerned. Recent decisions by
the Eighth Circuit Court of Appeals and the Occupational Safety and
Health Review Commission (the “Commission”) lend significant
support to OSHA’s interpretation of its regulations that general
contractors bear responsibility for the safety of multi-employer worksites. Accordingly, Texas builders may see greater risk of (1) citations
issued by the Occupational Health and Safety Administration
(“OSHA”), and (2) claims under state tort liability for injuries
sustained by subcontractors’ employees. Those two issues will be
discussed in turn.
1. Builders who have employees on the job site and who
are “controlling employers” can be cited for the OSH
Act violations of their subcontractors, even if the
builder’s employees are not exposed to the hazard. 1
OSHA’s multi-employer work-site policy, as opposed to the
literal wording of its regulations, provides that an employer with an
employee on the job site — concurrent with the existence of a
condition considered to be hazardous under the OSH Act 2 — may be
cited as a creating, exposing, correcting, or controlling employer. The
Commission has recently found support for its position that builders
can be “controlling employers” — that is, they are considered to have
sufficient supervisory authority and control over the work site to
detect and abate the hazards caused by their subcontractors. 3
According to OSHA’s explanatory guidelines, control can be
established by contract or by behavior. 4
Recent decisions by the Commission employ a broad and
encompassing definition of “control.” That definition is at variance
with the higher level of control required to create an employment
relationship under state law. Indeed, in the Commission’s analysis,
several aspects of a typical independent contractor relationship that
C. Stephen Tobin | Page 2 of 3
would not indicate control under state law (e.g., scheduling of
commencement of work; ability to stop the work; and restrictions on
ability to subcontract) lean toward a finding of control by the
Commission.
Thus a builder who has one or more employees on the job site
AND who is a controlling employer may be cited by OSHA for the
OSH Act violations of its subcontractors, even if the builder’s
employees are not exposed to the hazard.
2. Complying with the OSH Act can raise the risk of
liability under state tort law for injuries sustained by
subcontractors’ employees.
Given the increased risk of OSHA citations discussed in the
previous section, the most obvious solution would seem to be for the
Builder to ensure that its worksites are in compliance with the OSH
Act. While this seems logical, where independent subcontractors are
concerned, complying with — and causing subcontractors to comply
with — the OSH Act may increase the risk that a builder will be held
liable under Texas tort law for the personal injuries suffered by the
employees of its subcontractors. Of course, the financial implications
of a negligence finding against the builder under Texas tort law could
be exponentially greater than any OSHA fine.
Under Texas law, a builder who undertakes to supervise or
control a subcontractor’s work owes a duty to the subcontractor’s
employees to perform the supervision with reasonable care. 5 The
control must go beyond the mere scheduling of the work, and can be
established by contract or by behavior (known as “actual control”). 6
Thus builders who cause their subcontractors to comply
with the OSH Act — whether by contract or through the
exercise of actual control — may owe their subcontractors’
employees a duty to perform that control non-negligently. A
builder who undertakes that duty may encounter a slippery slope as
to exactly how, and to what extent, the duty must be fulfilled to avoid
a negligence finding.
A State-law duty will not arise, however, if the builder merely
exercises or maintains the right to stop the work or suggest a safe
manner for the subcontractor’s employees to perform the work. 7 If
the policy were otherwise, the Texas Supreme Court explained,
builders would be deterred from enforcing even minimal standards. 8
And, moreover, builders should not be encouraged to sit on their
hands while a worker is injured or killed, just to avoid liability. 9
Nevertheless, by retaining the right to stop work, a builder
(who has employees on the work site) may be considered a
“controlling employer” (as discussed in Section 1 above). If so, the
builder would be responsible for requiring its subcontractors to fully
comply with the provisions of the OSH Act. Thus by engaging in
actions that do not demonstrate control under state law, a builder
may nevertheless have demonstrated sufficient control under the
Commission’s analysis.
C. Stephen Tobin | Page 3 of 3
3. Conclusion: Discuss with your counsel how to
balance and manage the risks of OSHA citations and
state tort liability.
The Commission’s new interpretation of the OSH Act suggests
that builders who have employees on the job site and who are
“controlling employers” may be cited by OSHA for the OSH Act
violations of the builder’s subcontractors. Causing subcontractors to
comply with the OSH Act, however, raises another risk: state tort
liability for injuries sustained by subcontractors’ employees.
Balancing and managing these significant risks can be a complex task,
but your legal counsel may be able to propose solutions that can
reduce the risks you face in doing so.
1.
Solis v. Summit Contrs., Inc., 558 F.3d 815, 824–25 (p10) (8th
Cir. 2009); Summit Contrs., Inc., 2010 O.S.H. Dec. (CCH) P3309, 8
(O.S.H.R.C. Aug. 19, 2010).
2.
Solis v. Summit Contrs., Inc., 558 F.3d 815, 824 (8th Cir. 2009)
(“[T]he plain language of [the OSH Act] does not preclude an employer’s
duty to protect the place of employment, including others who work
at the place of employment, so long as the employer also has
employees at the place of employment.”).
3.
Summit Contrs., Inc., 2010 O.S.H. Dec. (CCH) P3309, 61
(O.S.H.R.C. Aug. 19, 2010) (The Commission’s “test of employer liability …
[holds] an employer ‘responsible for the violations of other employers where
it could reasonably be expected to prevent or detect and abate the violations
due to its supervisory authority and control over the worksite.’”)
(quoting McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 1109, 2000 CCH
OSHD ¶ 32,204, p. 48,780 (No. 97-1918, 2000) (citation omitted). It is
uncertain, though likely, that the Fifth Circuit would hold the same way.
4.
Occupational Safety and Health Administration, CLARIFICATION OF
MULTI-EMPLOYER CITATION POLICY, CPL 2-0.124, X.E.1. (December 10, 1999)
(A controlling employer is one “who has general supervisory authority over
the worksite, including the power to correct safety and health violations
itself or require others to correct them. Control can be established by
contract or … by the exercise of control in practice.”), available at
http://bit.ly/hadxM2.
5.
The Dow Chemical Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002)
(quoting Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985)).
6.
Id. (In addition to contractual control, control can be shown where
the builder “actually exercised control over the manner in which the
independent contractor’s work was performed.”).
7.
Id. at 607–608 (citing RESTATEMENT (SECOND) OF TORTS § 414 cmt. c
(1965)).
8.
Id. at 608.
9.
Id.