Reminder: OSHA’s Multi-Employer Doctrine Let’s It Cite You For Somebody Else’s Employee

It has long been OSHA’s position that employers may be cited for the safety and health of someone else’s employees. This doctrine, called the “multi-employer liability doctrine,” has come to life through a broad reading of Section 5(a) of the Occupational Safety and Health Act (the “Act”) of 1970 (codified at 29 USC § 654(a)). Most courts interpret that subparagraph as requiring employers to “comply with occupational safety and health standards promulgated under the Act,” regardless of whether it is the employer’s employees that are actually exposed, or someone else’s. OSHA’s CPL 02-00-124, containing its multi-employer citation policy, illustrates the different employers who may be cited.

The Doctrine’s Wide Acceptance.

The multi-employer citation doctrine has been frequently challenged and upheld – not only by the Occupational Safety and Health Review Commission, but also by Courts of Appeal for no fewer than seven circuits. See Summit Contractors, Inc. v. Sec’y of Labor (“Summit II”), 442 Fed. Appx. 570, 571-72 (D.C. Cir. 2011); Brennan v. OSHRC, 513 F.2d 1032 (2d Cir. 1975); R.P. Carbone Constr. Co. v. OSHRC, 166 F.3d 815 (6th Cir. 1998); U.S. v. Pitt-Des Moines, Inc., 168 F.3d 976 (7th Cir. 1999); Marshall v. Knutson Constr. Co., 566 F.2d 596 (8th Cir. 1977); Beatty Equip. Leasing, Inc. v. Secretary of Labor, 577 F.2d 534 (9th Cir. 1978); Universal Constr. Co., Inc. v. OSHRC, 182 F.3d 726 (10th Cir. 1999).

Recently, in late 2018, the the Court of Appeals for the Fifth Circuit became the eight circuit to approve the doctrine. Previously, employers in Texas, Mississippi, and Louisiana had pointed to the Fifth Circuit’s holdings in Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (1981) and Southeast Contractors v. Dunlop, 512 F.2d 675 (5th Cir. 1975) for the proposition that an employer may only be cited for the safety and health of its employees. However, in Acosta v. Hensel Phelps Constr. Co., 909 F.3d 723 (5th Cir. 2018) clarified its precedent and aligned itself to the weight of authority in other jurisdictions.

How the Doctrine Works.

On multi-employer work sites (in both the general and construction sectors), more than one employer may be cited for a hazardous condition that violates an OSHA regulation. The Multi-Employer Doctrine allows the Department of Labor to cite an employer for the violation of an OSHA regulation even for a regulatory breach by a non-employee working on a site controlled by the employer. OSHA generally will use a two-step process to determine whether it will cite more than one employer at a work site. OSHA first will determine whether the employer is a creating, exposing, correcting, or controlling employer. These terms, as defined by OSHA, are set forth below:

A. The Creating Employer

Employer that caused a hazardous condition that violates an OSHA regulation.

B. The Exposing Employer

Employer whose own employees are exposed to the hazard.

C. The Correcting Employer

Employer that is engaged in a common enterprise with the exposing employer and is responsible for correcting the hazard. This may arise where an employer is given the responsibility of installing and/or maintaining particular safety/health equipment or devices on a worksite.

D. The Controlling Employer

Employer who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.

E. Multiple Roles

A creating, correcting or controlling employer will often also be an exposing employer. Exposing, creating and controlling employers can also be correcting employers if they are authorized to correct the hazard.

If the employer falls into one of these categories, it has obligations with respect to OSHA requirements. After determining that the employer meets one of the above definitions, OSHA will determine if the employer’s actions were sufficient to meet those obligations. If not, OSHA may cite both the employer whose employees committed the safety violation, and a second employer who falls into one of the above categories.

Example: Company A hires Contractor X to replace a grain distributor at Company A‚ facility. Contractor X informs Company A that it will conduct all of the work, and provide its employees with training and personal protective equipment for the work required. Company A requires Contractor X to certify that it will comply with all applicable OSHA regulations, including those established by Company A for contractors at its site. Contractor X agrees to do so.

Contractor X oversees the work of its own employees. Contractor X employees fail to use fall protection when installing the distributor, which is located 100 feet above the ground. An OSHA inspector drives by and notices the lack of safety equipment. An employee of Company A arrives at the work site around the same time to check on the work. After confirming that fall protection was not being utilized, OSHA cites both Contractor X and Company A for a violation of OSHA‚ fall protection regulations. OSHA claims that Company A was a controlling employer on the work site and thus was responsible for ensuring the safety of the persons working thereon, even non-employees of Company A.