In a case that has been watched with great anticipation by employers, labor unions, and employees alike, the Eighth Circuit Court of Appeals today reversed the decision of the Occupational Safety and Health Review Commission in the case of Summit Contractors, Inc., in effect ruling that "controlling" employers may be responsible for the safety of other employers' workers. The Review Commission had held that OSHA’s "Multi-Employer" worksite policy, which allows for general contractors who "control" a worksite to be liable under the OSH Act regardless of whether they have exposed employees, was invalid in the construction context. The Review Commission determined that 29 C.F.R. § 1910.12(a), which addresses the scope of the construction standards, requires only that an employer protect "each of his employees." Therefore, according to the Review Commission, the Multi-Employer policy unlawfully expands an employer’s duties by requiring it to protect another employer’s employees.
The Eighth Circuit Court of Appeals reversed the Review Commission. It held that the plain language of 29 C.F.R. § 1910.12(a) did not preclude the Secretary of Labor from citing controlling employers, in part, because it also requires each employer to protect the "places of employment of each of his employees." In other words, this language is not limited to the employer’s employees, but also includes the "places of employment" of such employees. Because, in turn, these "places" can include the employees of another employer, the court held that OSHA’s Multi-Employer policy does not violate the regulation. The Court went on to note that even if the regulation were ambiguous, it would defer to the Secretary of Labor’s interpretation of the regulation as it is reflected in the Multi-Employer policy.
Employers can be assured that this decision will bolster OSHA’s resolve to continue to implement its Multi-Employer policy in the construction industry. For a copy of this case, Solis v. Summit Contractors, Inc.,No. 07-2191 (8th Cir. Feb. 26, 2009), please go to http://media.ca8.uscourts.gov/opndir/09/02/072191P.pdf.
Rodney Smith, Pat Miller, and Chuck Newcom are part of Sherman and Howard's Labor & Employment Law Department, practicing in the areas of occupational safety and health law. We routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.
For more information please contact one of the members of the OSHA Practice Group:
OSHA Update is published to provide information of general interest and not to give legal advice concerning any specific situation. Readers are welcome to copy or distribute OSHA Update articles for educational purposes. Credit given to Sherman & Howard L.L.C. is greatly appreciated. All comments are welcome.