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Court Rules Contractors Can Be Cited for Subs

Wednesday, January 9, 2019

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A U.S. Appeals Court has confirmed that the Occupational Safety and Health Administration can cite a general contractor—even if its employees are not affected—for subcontractor safety violations.

Zolnierek / Getty Images

A U.S. Appeals Court has confirmed that the Occupational Safety and Health Administration can cite a general contractor—even if its employees are not affected—for subcontractor safety violations.

The 5th Circuit in New Orleans made the ruling in late November after Labor Secretary Alexander Acosta requested the court review an OSHA court decision that said a general contractor could only be cited for safety threats to its own employees.

What Happened

The ruling originally stems from a fall 2015 violation issued to Hensel Phelps Construction, the general contractor over subcontractor Haynes Eaglin Watters, which hired CVI Development for demolition and excavation work at a library construction project in Austin, Texas.

An inspection of the site was prompted by a safety complaint, which led to a willful violation for both CVI and Hensel. In addition, CVI received two serious violations. All violations were related to excavation hazards.

OSHA also fined Phelps $70,000 along with the willful citation because it was the “controlling employer” under its citation policy.

flukyfluky / Getty Images

The ruling originally stems from a fall 2015 violation issued to Hensel Phelps Construction, the general contractor over subcontractor Haynes Eaglin Watters, which hired CVI Development for demolition and excavation work at a library construction project in Austin, Texas.

In April 2017, Brian Duncan, administrative law judge for the Occupational Safety and Health Review Commission’s Denver regional office, used a case precedent of 1981’s Melerine v. Avondale Shipyards Inc. to rule that Hensel could not be held liable for OSHA violations from a subcontractor.

That’s when the Department of Labor appealed.

The 5th circuit ruled in favor of the DOL, saying that the case precedent that Duncan used was no longer valid because of the 1984 U.S. Supreme Court case Chevron USA Inc. v. Natural Resources Defense Council Inc.

The OSH Commission is now slated to review the case again.

   

Tagged categories: Citations; Good Technical Practice; Health and safety; Laws and litigation; Lawsuits; NA; North America; OSHA; OSHA; Safety; Violations

Comment from Michael Halliwell, (1/9/2019, 11:14 AM)

Hmmmm....been the case up here for a while. Part of the reason so many firms who act as Primes have health and safety pre-screening processes in place for anyone they bring on to site and want to screen the subs too. At least here, the individual worker can be hit with a fine too.


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