RIPE FOR APPEAL: WHO IS CONSIDERED AN “EMPLOYER” WHEN DETERMINING LIABILITY FOR MULTI-EMPLOYER WORKSITE SAFETY VIOLATIONS?

Abstract

This thesis explores the vexing question of whether or when a general contractor in overall control of a worksite could be held liable for the injury or death of an employee belonging to a subcontractor. This substantive issue has been considered by the Occupational Safety and Health Review Commission (Hereafter, the Commission) and the courts for more than forty years. Years of legal confusion have followed regarding the definition of “employer” and “employees” and their overall safety responsibilities. This confusion occurs because of language in 29 C.F.R. § 1910(a), which refers to “his” employees. However, under the Multi-Employer Worksite Doctrine a general contractor may be liable for all employees on the worksite. In 1995, the United States Court of Appeals for the District of Columbia Circuit noted a certain tension between the language of 29 C.F.R. § 1910.12(a) and the Secretary of Labor’s multi-employer policy. This thesis reviews the most substantive issues that have been litigated and why this matter is ripe for appeal to the U. S. Supreme Court. The issue is whether a “Controlling Employer” theory of liability, defined by the Secretary of Labor as “an enforcement scheme grounded in contract,” fits within the full scope and application of this “employment-based” duty under § 1910.12(a) of a construction employer to “protect . . . his employees” by complying with the 29 C.F.R. Part 1926 standards. Meanwhile, every contractor on a worksite will likely be advised by its corporate counsel to reconsider the language in its contracts, as well OSHA’s multi-employer policy, and take “reasonable care” to ensure its “places of employment” are free of hazards.