Worker Deemed Employee in Fatal Case
A Florida contractor must answer federal citations involving the electrocution of a Hispanic drywall worker, although the worker was paid in cash and the contractor denied knowing him.
Although Nathalie Monroe, president of Monroe Drywall Construction (MDC), claimed that her company “had no employees at the [work] site [where the death occurred] and that the individual who died was not its employee,” the Occupational Safety and Health Review Commission has found otherwise.
In a decision April 19, the commission overturned a November 2012 ruling by Administrative Law Judge Stephen J. Simko Jr. Simko had ruled that the victim had not been Monroe’s employee and that she was thus not liable for two safety citations issued by the Occupational Safety and Health Administration after his death.
The case offers a detailed look into the underground economy of commercial subcontracting.
Job Site Electrocution
The drywall worker was electrocuted about 9 a.m. Sept. 27, 2011, when he came in contact with wiring that was protruding from conduit at a large commercial space that was being remodeled in Panama City, FL. The victim was one of four Hispanic workers hanging and finishing drywall at the site.
MDC, also located in Panama City, was a subcontractor for GMB Construction Services (GMB), which itself had contracted with a general contractor, The Hatch Group, to do framing and drywall work. The framing work went to another subcontractor, and GMB hired MDC to hang and finish the drywall. There was also an electrical contractor on site.
Monroe personally worked at the site but was not there at the time of the accident. She arrived after the victim was removed from the scene.
Monroe told police at the scene “that she did not know the deceased worker and that he did not work for her,” according to the commission.
No Worker's Comp, Cash Payments
GMB barred MDC from the site after the accident. MDC did not carry worker’s compensation coverage, but Monroe contended that the company was exempt from the requirement because she and her husband did all of the work themselves, without employees.
The drywall workers said they were paid in cash. The company's owner denied knowing the worker who was killed and said she had not hired him.
The day after the accident, Monroe met an OSHA Compliance Officer at the site and “told him she felt it was unfair for her to be barred from the site for not having worker compensation coverage as the deceased worker was not her employee.”
Both the general contractor and the owner of GMB told the OSHA officer that the drywall work was exclusively the job of MDC and that the drywall workers were Monroe’s employees. Monroe told OSHA that the drywallers worked for GMB.
Two of the drywallers, however, told the OSHA officer that they worked for Monroe. One worker spoke in English; the other, in Spanish, using a translator. The English-speaking worker said he “reported his hours, and those of the other drywall hangers, to Monroe, who paid all of them in cash,” according to the commission's ruling
Simko, the judge, had dismissed the workers’ statements as hearsay, even though MDC itself did not object to them as such, the commission found. (Indeed, later in the process, Monroe admitted that she had known the worker who died and had worked with him in the past, but said she had not hired him for that job.)
The Occupational Safety and Health Review Commission is an independent federal agency that reviews and adjudicates OSHA decisions.
Since MDC had not challenged the statements, the judge should have accepted them, the commission said.
The judge had also rejected the testimony of the GC and GMB, saying that they could have been trying to avoid their own responsibilities.
But the commission said Monroe had had the same motivation—“she, too, had an interest in avoiding liability,” the panel found. The GC, meanwhile, had no vested interest in identifying one subcontractor rather than the other as the men’s employer, the commission said.
Finally, the commission said, both GMB’s written agreement with MDC and MDC’s written invoice for the work show that MDC was solely responsible for the drywall work.
All of that is more than enough, the commission said, to have MDC face up to its citations.
The citations allege that the employer failed to:
The substance of those violations will be decided next in the regular OSHA process.