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Case Update: Secretary of Labor v. Summit Contractors, Inc.: a Revival of the Controlling Employer OSHA Citation Policy on Multi-Employer Worksites

June 1, 2009

Pennsylvania - Construction Litigation

This is an update to "The Summit Decision: Limiting General Contractor's Liability Under OSHA for Safety Violations of its Subcontractors at Multi-Employer Construction Sites," published in Volume 15, No. 1 of Defense Digest. Since publication, the Eighth Circuit has reviewed and overturned the decision of the Occupational Safety and Health Review Commission, once again permitting OSHA to issue citations under their "controlling employer" theory at multi-employer worksites. 2009 U.S. App. LEXIS 3755 (Feb. 26, 2009). On multi-employer worksites, the "controlling employer" doctrine permits OSHA to issue citations to a general contractor for OSHA violations of its subcontractors, even if the general contractor did not create or expose any of its own employees to the risk.

The Eighth Circuit's ruling reversed the decision of the Commission and upheld the citation originally issued to Summit, the general contractor overseeing the construction of a college dormitory in Little Rock, Arkansas. Summit was issued a citation for its subcontractor's, All Phase, lack of fall protection for its employees. It was undisputed that Summit previously observed All Phase's lack of fall protection and advised it to comply with all fall protection standards. It was further undisputed that Summit did not create the hazard and no Summit employees were exposed to the hazard. The citation was issued against Summit as a "controlling employer" under the theory that the general contractor has control over the multi-employer worksite and the ability to address any violations of its subcontractors.

The Eighth Circuit held that 29 C.F.R. ยง 1910.2(a) does not preclude the Secretary of Labor from issuing citations pursuant to its controlling employer doctrine. However, even the majority was troubled by the fact that the "controlling employer citation policy places an enormous responsibility on a general contractor to monitor all aspects of a worksite." This burden is particularly onerous given OSHA's detailed and complex trade specific regulations. However, despite the court's concerns that there may be little benefit in citing a general contractor for a subcontractor's violation, particularly when a subcontractor is in the best position to be familiar with the specific OSHA regulations governing its trade, such policy concerns are issues for Congress or the Secretary of Labor.

The Eighth Circuit did not foreclose the argument that the Secretary could not lawfully apply its controlling employer doctrine at multi-employer worksites without first adopting it through the informal rulemaking process of the Administrative Procedure Act. This argument, however, was not raised by the parties, only by the amici on behalf of Summit, and thus, the court did not consider this argument in coming to its decision. The lack of informal rulemaking may be grounds to challenge the controlling employer doctrine in future actions.

Further, although the Eighth Circuit's decision revives the "controlling employer" doctrine on multi-employer worksites, the court did note that its decision does nothing to create a private cause of action, nor does it pre-empt state law. Therefore, in Pennsylvania, the Pennsylvania Supreme Court decision in Leonard v. PennDOT, 771 A.2d 1238, 1240 (Pa. 2001) is still controlling. In Leonard, the Court held that a contractor could fully delegate safety responsibilities to a subcontractor and that the delegating contractor could not be held liable for injuries resulting from the work entrusted to the subcontractor. However, despite the Leonard decision, at this time OSHA may issue citations under its controlling employer doctrine to general contractors for violations of its subcontractors. While such citations are not negligence per se, it is likely that parties will seek to introduce OSHA standards on the issue of the applicable standard of care and any citations issued under the controlling employer doctrine as some evidence negligence.

*Elizabeth, an associate in our Philadelphia, Pennsylvania, office, can be reached at (215) 575-2599 or eaunderwood@MDWCG.com.

Defense Digest, Vol. 15, No. 2, June 2009

Affiliated Attorney

Elizabeth A. Pope
Shareholder
(215) 575-2599
eapope@mdwcg.com

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