Eighth Circuit Extends OSHA Liability for General Contractors Under "Controlling-Employer Citation Policy"

The U.S. Court of Appeals for the Eighth Circuit recently approved the federal Occupational Safety and Health Administration (OSHA) policy of issuing citations to general contractors for allowing subcontractors to violate OSHA safety standards and thereby expose their employees to hazardous working conditions. In Solis v. Summit Contractors Inc., 8th Cir. No. 07-2191, decided on February 26, 2009, the Eighth Circuit upheld a citation against Summit Contractors, Inc. (Summit), despite the fact that no Summit employees were affected by the cited dangerous condition.

The Facts

Summit was the general contractor on a college dormitory construction project. Summit contracted out nearly all of the work on the project, and had only four of its own employees at the worksite. OSHA cited Summit for safety violations on the worksite, finding that several employees were working on scaffolds lacking guardrails without personal fall protection. OSHA cited Summit even though the scaffolds and related work were under the control of the subcontractor and endangered only the subcontractor's employees. OSHA's Field Inspection Reference Manual provides for the citation of a general contractor under these circumstances. (Minnesota OSHA takes the same position in its Field Compliance Manual.)

Summit contested the citation, arguing that the applicable OSHA construction standard 29 CFR § 1910.12(a), which states that "each employer shall protect the employment and places of employment of each of his employees engaged in construction work," imposes a duty on an employer to protect only its own employees, not the employees of its subcontractors. The administrative law judge upheld the citation, but the Occupational Safety and Health Review Commission (OSHRC) vacated it. The OSHRC agreed with Summit's interpretation of § 1910.12(a) and rejected the "controlling-employer citation policy," as set forth in the Field Inspection Reference Manual. The Secretary of Labor appealed to the Eighth Circuit.

The Eighth Circuit's Holding

The Eighth Circuit reversed and explicitly adopted the controlling-employer citation policy, holding that "OSHA may issue citations to general contractors at construction sites who have the ability to prevent or abate hazardous conditions created by subcontractors through the reasonable exercise of supervisory authority regardless of whether the general contractor created the hazard or whether the general contractor's employees were exposed to the hazard."

After discussing the historically varied application of the controlling-employer citation policy by the OSHRC and the Secretary of Labor, the Eighth Circuit addressed the OSHRC's decision in this case. The court closely examined the language of § 1910.12(a) and concluded that it required "(1) that an employer shall protect the employment of each of his employees . . . and (2) that an employer shall protect the places of employment of each of his employees." In other words, an employer must protect a place of employment, including others who work at the place of employment, so long as the employer also has employees at that place of employment. The court noted that to read the regulation otherwise would make the "places of employment" clause of the standard superfluous. It further noted that even if it had determined that §1910.12(a) was ambiguous (which it did not), it would still have deferred to the Secretary of Labor's reasonable interpretation and upheld the general contractor's citation.

The Eighth Circuit did acknowledge that the controlling-employer citation policy "places an enormous responsibility on a general contractor to monitor all employees and all aspects of a worksite," but opined that these policy concerns are better left to Congress or the Secretary of Labor than to the courts.

Lessons for General Contractors and Other "Controlling Employers"

While federal and Minnesota OSHA have adhered to the controlling-employer citation policy for some time, this decision will likely cause these agencies to issue citations to controlling employers more frequently. General contractors and other employers who have control over multiemployer worksites should take care to ensure that all OSHA standards are met in every worksite they control, regardless of whether the potentially affected employees work for the general contractor itself or for a subcontractor.

Perhaps the only refuge left for the controlling employer is the fact that the courts and the OSHRC have uniformly held that OSHA may not cite the controlling employer for a violation of the general duty clause. See, e.g., Anthony Crane Rental, Inc. v. Reich, 70 F.3d 1298, 1305 (D.C. Cir. 1995); Ronsco Constr. Co., O.S.H.R.C. Docket No. 79-3153, 1982 OSAHRC LEXIS 232, *4 (O.S.H.R.C. Apr. 21, 1982). The general duty clause imposes on employers a duty to protect employees from recognized hazards likely to cause death or serious harm, including those hazards not mentioned in another more specific standard. The general duty clause contains unique language that requires that the cited employer must have exposed "its employees" to the hazard.