DOL has new leadership under Secretary Acosta. But, at least one longstanding OSHA policy is not changing any time soon if the agency has its way. OSHA recently asked the U.S. Court of Appeals for the Fifth Circuit to uphold the agency’s multi-employer citation policy after an administrative law judge tossed out an OSHA citation based on the policy.
OSHA’s multi-employer policy has been around for decades and in its current form for nearly 20 years. Under the policy, if more than one employer has a role at a work site, such as a construction site with multiple contractors, more than one employer can be cited for the same OSHA violation.
As OSHA summarized in a recent legal brief defending the citation and the policy, the agency will cite “an employer who causes a hazardous condition (a ‘creating employer’) or a general contractor or other employer having control over a worksite who should have detected and prevented a violation through the reasonable exercise of its supervisory authority (a ‘controlling employer’) . . . whether or not its own employees were exposed to the hazard.” (See OSHA’s multi-citation policy here.)
The ALJ tossed out the citation to the “controlling employer”
OSHA’s recent filing objects to an ALJ’s ruling that had questioned the validity of the policy. In Acosta v. Hensel Phelps Construction Co., Hensel Phelps was the general contractor on a project to build a new library. OSHA alleged that a sub-contractor working in a particular part of the work site had exposed its employees to cave-in hazards. But, OSHA also cited Hensel Phelps for the same violation as the “controlling employer” at the site.
Even though he found that Hensel Phelps met the definition of a controlling employer and that the Occupational Safety and Health Review Commission had supported OSHA’s multi-employer policy, Administrative Law Judge Brian Duncan tossed out the violation because it occurred in Texas, within the jurisdiction of the 5th Circuit. The ALJ ruled that in a 1981 case, Melerine v. Avondale Shipyards, Inc., the 5th Circuit had effectively quashed the multi-employer doctrine. An employer at a Texas work site, he ruled, could not be liable as a controlling employer when its own employees were not exposed to a hazard.
OSHA disagree and defends the multi-employer citation policy in its recent brief. OSHA argues that Melerine does not apply because it was a negligence case, not an OSHA case. It also claims that Supreme Court decisions since Melerine would change the outcome by requiring the court to defer more to the agency.
So far, full steam ahead
For many observers, the more interesting piece is what OSHA’s legal position in this case may say about the direction of OSHA policy under the Trump administration. While President Trump’s nominee to head OSHA has not yet been confirmed, Secretary of Labor Acosta and some DOL and OSHA political appointees are in place. Some wondered whether the new OSHA would leave the ALJ decision in place as a marker of where it may be headed. At least for the time being, though, it seems that that the status quo will prevail.