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

  • By: NDA
  • On: 12/07/2018 12:49:31
  • In: Safety
  • Comments: 0
The Fifth Circuit Court of Appeals recently ruled that the Department of Labor (DOL) can cite general contractors for workplace safety violations that put subcontractors' workers in danger.  Seven other circuits had previously upheld OSHA's multi-employer citation policy.
The Fifth Circuit Court of Appeals recently ruled that the Department of Labor (DOL) can cite general contractors for workplace safety violations that put subcontractors' workers in danger.  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.
  
The case involved an OSHA citation against a general contractor (Hensel-Phelps) 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 questions about the decision, contact Kevin McKenney at kmckenney@demolitionassociation.com.

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