Review Commission Invalidates OSHA Policy of Prosecuting General Contractors for Subcontractor Violations
05/02/2007The Occupational Safety and Health Review Commission, an independent adjudicatory body, has, in effect, invalidated the so-called "controlling employer" doctrine in the construction industry. The doctrine permitted the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue a citation to a general construction contractor merely because its subcontractor had committed a violation—even if the violation had not endangered the general contractor’s employees.
On April 27, 2007, the Review Commission held in Secretary of Labor v. Summit Contractors, Inc., OSHRC Docket No. 03-1622 [attached below] that issuing a citation to a so-called "controlling employer" such as a general contractor was inconsistent with an OSHA regulation, 29 C.F.R. § 1910.12(a). The decision bars OSHA from issuing a citation to a general contractor merely because it controlled the worksite. General contractors who have received such citations should challenge them on this ground.
The Secretary of Labor has 60 days to appeal the Review Commission’s decision to the U.S. Courts of Appeals for the Eighth or Eleventh Circuits.
McDermott Will & Emery submitted an amicus curiae brief and orally argued on behalf of the National Association of Home Builders, the Contractors’ Association of Greater New York, Inc., the Greater Houston Builders Association and the Texas Association of Builders.
Click here to view Secretary of Labor v. Summit Contractors, Inc., OSHRC Docket No. 03-1622