Author: Kim Slowey, @kimslowey
A U.S. Appeals Court judge for the 5th Circuit in New Orleans has ruled that OSHA can cite general contractors — even if their employees are not affected — for subcontractor safety violations. The ruling came after Labor Secretary Alexander Acosta requested that the 5th Circuit review an OSHA administrative court decision that said a general contractor could only be cited for safety threats to its own employees.
In 2017, a Denver Occupational Safety and Health (OSH) Commission administrative judge ruled that Hensel Phelps could not be cited by the agency for safety hazards created by one of its subcontractors on a project in Austin, Texas. However, the 5th Circuit said more recent rulings have rendered the case law on which the administrative judge based his decision “obsolete” and said that Hensel Phelps could be held responsible for safety on the multi-employer site as a “controlling employer.”
According to court documents, Hensel Phelps hired subcontractor Haynes-Eaglin-Waters (HEW) for a library construction project, and HEW, in turn, hired CVI Development as a sub-subcontractor to perform demolition, excavation and other work. Hensel Phelps and HEW project staff allegedly directed CVI to work in an unsafe excavation area. An OSHA inspector cited both Hensel Phelps and CVI for safety violations. The OSH Commission will now review the matter again, taking the 5th Circuit’s decision into consideration.
While workers might have once been expected simply to accept the risks of working on a dangerous construction site as part of their job, contractors, as well as state and local authorities, have made safety a priority. And authorities have become more willing to pursue criminal charges against contractors when their disregard results in injury or death.
Earlier this year, the San Francisco District Attorney’s Office charged Michael Sommer of LC General Engineering and Construction, along with two of his employees, with felony involuntary manslaughter in the 2016 death of a worker. Prosecutors alleged that Sommer and the two other employees allowed an untrained worker to operate a steamroller while on one of LC’s job sites. While the worker was using the steamroller, he lost control and fatally crushed Maurilio Rojas.
California’s Division of Occupational Safety and Health (Cal/OSHA) also proposed that the company pay a fine of $52,810 for six violations connected to the incident, but LC has contested those penalties.
Also, this summer in New York City, where the Manhattan District Attorney’s Office has been aggressive in pursuing construction fraud and construction safety violations, SSC High Rise Construction pleaded guilty to second-degree manslaughter after one of its workers died in a 2017 fall.
SSC employee Juan Chonillo fell 29 stories from a construction platform that an SSC crew was trying to move with a crane. The platform became stuck, and Chonillo fell after he took off his safety harness while attempting to free the platform.
Appeals court rules contractors can be cited for hazardous conditions at multi-employer worksitesoffsite link
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