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The Employer. Who Is An Employer? Multi-Employer Worksites. The Act Applies to “Employers”. Employer is Defined As: A person (or business) engaged in a business affecting commerce who has “employees.”. Darden Factors.
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The Employer Who Is An Employer? Multi-Employer Worksites
The Act Applies to “Employers” • Employer is Defined As: • A person (or business) engaged in a business affecting commerce who has “employees.”
Hiring Party’s Right to Control the Manner and Means By Which the Work is Done Skill Required Source of Materials & Tools Location of the Work Duration of the Relationship Between the Parties Whether the Hiring Party Has the Right to Assign Additional Projects to the Hired Party Extent of the Hired Party’s Discretion Over When and How Long to Work Method of Payment Hired Party’s Role in Hiring and Paying Assistants Whether the Work is Part of the Regular Business of the Hiring Party Provision of Employee Benefits Tax Treatment of the Hired Party Darden Factors
Who is an employee? • The Commission, in considering whether an employment relationship exists, places primary reliance upon who has CONTROL over the work environment such that abatement of hazards can be obtained.
Kinds of Employers On A Multi-Employer Worksite • Creating: The employer that caused a hazardous condition that violates an OSHA standard or the General Duty Clause • Exposing: An employer whose own employees are exposed to a hazard
Kinds of Employers On A Multi-Employer Worksite • Correcting: An employer who is responsible for correcting a hazard • Controlling: An employer who has general supervisory authority over the worksite, including the power to correct violations itself or require others to correct them
2-Step Process Step 1: Is the employer a creating, exposing, correcting, or controlling employer Step 2: Were the employer’s actions sufficient to meet the obligations applicable to that category (or categories) of employer?
How to establish control? • Contract • Explicitly Stated in the Contract • Looking At the Contract As a Whole • Exercise of control in practice
Establishing “Control” • Contract This can take the form of a specific contract right to require another employer to adhere to safety and health requirements and to correct violations the controlling employer discovers. • Combination of Other Contract Rights The authority to resolve disputes between subcontractors, set schedules and determine construction sequencing is particularly significant because these functions are likely to affect safety. • Exercise of Control
OSHA’s Policy: • A controlling employer must exercise reasonable care to prevent and detect violations on the site • The extent of the measures that a controlling employer must implement to satisfy this duty of reasonable care is less than what is required of an employer with respect to protecting its own employees • The controlling employer is not normally required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards or of trade expertise as the employer it has hired
Standard of Reasonable Care Depends On: • The Scale of the Project • The Nature and Pace of the Work • Including the Frequency with which the Number or Types of Hazards Change as the Work Progresses • How Much the Controlling Employer Knows About the Safety History and Safety Practices of the Employer it Controls and About that Employer’s Level of Expertise
Evaluating Reasonable Care • Did the Controlling Employer: • Conduct Periodic Inspections of Appropriate Frequency? • Implement an Effective System for Promptly Correcting Hazards? • Enforce the Other Employers’ Compliance with Safety and Health Requirements With an Effective, Graduated System of Enforcement and Follow-Up Inspections?
An employer may defend against a citation by showing: • It neither created nor controlled the condition to a degree that it could realistically correct the condition in the manner contemplated by the standard and • either that the employees who were exposed or had access to the hazard were protected by realistic alternative measures, or • that the subcontractor did not have nor with the exercise of reasonable diligence could not have had notice that the condition was hazardous.
Where no means are available by which an employer can physically protect its employees against a hazard, the employer must nevertheless take the step of requesting the responsible contractor to abate the hazard. • What is expected of every employer is that it makes a reasonable effort to detect violations of standards not created by it but to which its employees have access and, when it detects such violations, to exert reasonable efforts to have them abated or take such other steps as the circumstances may dictate to protect its employees.
Summit Contractors • This Commission decision invalidated the “controlling employer” prong of OSHA’s multi-employer worksite policy and is currently on appeal to the 8th Circuit. • Commission held that DOL did not have authority to cite a controlling employer for violations of construction standards that it did not create and that its employees are not exposed to.
Summit Contractors: 3 Separate Opinions • Railton & Thompson both held that the regulation OSHA had promulgated to adopt the OSHA construction standards prevented the DOL from citing a general contractor with overall control of construction site. • According to the Commissioners, 29 CFR 1910.12(a), which states among other things that “each employer shall protect the employment and places of employment of each of his employees engaged in construction work,” expresses the DOL’s interpretation (Railton) or limitation (Thompson) its enforcement discretion with respect to the construction standards.
Summit Contractors: 3 Separate Opinions • Rogers dissented, saying that the majority decision reversed 30 years of OSH Act precedent, trivialized the Secretary’s enforcement discretion and policy-making ability, usurped her policy-making role, and destabilizes a previously rational and predictable body of law. • According to Rogers, the controlling employer doctrine is consistent with the OSH Act and is not inconsistent with 1910.12(a), which was not intended to address the multi-employer situation at all.
