Court Rules in Favor of OSHA’s Multi-Employer Citation Policy

Filed in Labor, Safety and Health, Legal by on December 5, 2018 0 Comments

The Fifth Circuit Court of Appeals last week ruled that the Department of Labor can cite general contractors for workplace safety violations that put subcontractors’ workers in danger. The case explored the legality of OSHA’s multi-employer citation policy.

NAHB has been challenging the multi-employer worksite doctrine for years, and filed an amicus brief, along with the Texas Association of Builders and other construction groups, in the case decided last week, Acosta v. Hensel Phelps Construction Co.

The three-judge panel for the Fifth Circuit, which covers Louisiana, Mississippi and Texas, wrote that “We conclude that the Secretary of Labor has the authority under the Occupational Safety and Health Act to issue citations to controlling employers at multi-employer worksites for violations of the act’s standards.”

Seven other circuits had previously upheld OSHA’s multi-employer citation policy. The Fifth Circuit had been an outlier, holding, since 1981, that OSHA regulations protect only an employers’ own employees. But the trend of the courts has been in favor of the Department of Labor’s position on the policy.

Hensel Phelps involved an OSHA citation against a general contractor for a violation of OSHA’s excavation standard, based on alleged violations of a subcontractor on a Hensel-controlled worksite.  The only employees exposed to the alleged hazards were employees of the subcontractor.  OSHA applied the multi-employer citation policy to issue the citation to Hensel and initially proposed it as “Willful” with a $70,000 proposed penalty.

An Administrative Law Judge narrowed the issue in the case to whether Hensel could be held liable for the violations of a subcontractor under the multi-employer citation policy.  The ALJ then set forth general precedent upholding the legality of the multi-employer citation policy.

But the ALJ determined that because the location of the incident was in the Fifth Circuit, he was obliged to follow Fifth Circuit precedent and that precedent “clearly ruled that the Act, and regulations implemented thereunder, serve to protect an employer’s own employees from workplace hazards.” The ALJ thus vacated the citation and the Secretary of Labor then appealed to the Fifth Circuit.

For more information, contact David Jaffe.

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