11th Circuit Affirms OSHA Citations Against Roofing Subcontractor for Actions of Sub-Subcontractors
Fama Construction LLC v. U.S. Occupational Safety and Health Review Commission arises from two fines issued to a roofing subcontractor by OSHA for the actions of two of the subcontractors’ sub-subcontractors. In March 2019, an OSHA inspector drove past several of the subcontractor’s job sites in Georgia, and observed a worker moving shingle packets on a roof with no fall protection and another operating a shingle elevator with no hardhat. After speaking with the workers, he learned they were sub-subcontractors of the subcontractor.
Subsequently, the OSHA inspector issued two citations to the subcontractor. The first was for failure to initiate and maintain programs that provide for frequent and regular inspections of jobsites and failure to require employees working in potentially dangerous areas to wear hardhats. The second citation charged the contractor with repeated violations for failing to provide adequate protection to employees working at heights on residential construction projects. The repeated violation claim was made due to seven prior citations to the subcontractor for fall protection violations.
During the subcontractor’s challenge to the citations, OSHA moved for summary judgment, arguing that the subcontractor was a controlling employer under OSHA’s multi-employer policy as follows:
OSHA's multi-employer policy dictates which employers can receive a citation from the agency for unsafe work conditions when more than one employer is responsible for the employees and the jobsite. A “controlling employer” is one “who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.” Under this rule, a controlling employer must “exercise reasonable care to prevent and detect violations on the site.”
The subcontractor countered this argument by asserting that OSHA’s interpretation of the multi-employer policy was invalid and that, as a subcontractor, it should not be considered a controlling employer, but rather the general contractor on the project should be the controlling employer. The subcontractor also argued that compliance with the OSHA regulations was economically infeasible because it would require an onsite supervisor at a cost of $50,000.00 per year which would exceed the profits on the projects.
The administrative law judge overseeing the proceedings granted OSHA’s motion for summary judgment, concluding as follows:
[The subcontractor] was a controlling employer because its owners admitted in their depositions that they had the authority to stop unsafe work conditions and remove roofers from the jobsite; [the subcontractor] failed to meet its responsibilities as a controlling employer because it did not dispute either that these violations occurred or that it took no action to address workplace safety; and [the subcontractor] failed to carry its burden to prove [economic infeasibility] because it provided no proof that it would have needed to hire new personnel to comply with OSHA regulations.
After an appeal and remand for further proceedings, the administrative law judge also concluded in granting a second motion for summary judgment filed by OSHA that:
[The subcontractor had a] duty as a controlling employer [to take] reasonable steps to prevent or detect and abate OSHA violations . . . and that [the subcontractor] breached this duty because it took no action to address workplace safety. [Further] there were no questions of material fact regarding [the subcontractor’s] economic infeasibility defense because it presented no evidence regarding whether there were alternative means to ensure that [the sub-subcontractors] complied with safety regulations.
The subcontractor ultimately petitioned the 11th Circuit Court of Appeals for review of these decision. On appeal, the subcontractor raised the following arguments regarding the validity of OSHA’s multi-employer policy:
[T]he policy is an impermissible interpretation of the duties of employers as defined by the Occupational Safety and Health Act, the policy was improperly modified without notice and comment as required by the Administrative Procedure Act, OSHA's definition of a controlling employer is unconstitutionally vague, and OSHA's enforcement of the policy is arbitrary and unreasonable. [The subcontractor] also disputes the application of the policy to subcontractors rather than general contractors on a multi-employer jobsite.
The subcontractor also asserted its arguments regarding the economic infeasibility of compliance with the OSHA requirements.
As to the subcontractor’s arguments regarding the multi-employer policy, the 11th Circuit concluded that these were not properly preserved for appeal because the subcontractor did not re-assert them during its second petition following the entry of the second summary judgment in favor of OSHA.
As to the economic infeasibility issue, the subcontractor argued on appeal that it would be impossible for it to comply with the regulations requiring the use of fall protection for workers on rooftops and hardhats for workers on the ground because the only way to enforce that would be to hire supervisors to monitor subcontractors at an annual cost of $50,000.00. In evaluating this argument, the 11th Circuit first noted that to prove economic infeasibility, the subcontractor was required to prove “(i) that compliance with a particular standard either [was] impossible or [would] render performance of the work impossible; and (ii) that it (the employer) undertook alternative steps to protect its workers (or that no such steps were available).”
For the first element, the subcontractor could have established this by showing that “the means of compliance prescribed by the applicable standard would have been infeasible, in that (a) its implementation would have been technologically or economically infeasible or (b) necessary work operations would have been technologically or economically infeasible after its implementation.” For the second element, the subcontractor could have established this by showing that alternative means of protection were infeasible. The 11th Circuit held that the subcontractor failed to adequately establish this because while the subcontractor did provide evidence of the cost of hiring supervisors, it failed to present evidence showing that hiring supervisors was the only way to to comply with the OSHA requirements. Accordingly, the 11th Circuit affirmed the ruling in favor of OSHA.
About the Author:
Jason Lambert is a Florida Board Certified Construction Attorney and Partner in the Construction Industry Practice Group at Hill Ward Henderson, in Tampa, Florida. He is also the founder and chief contributor to the Hammer & Gavel construction law blog. Jason focuses his practice on representing contractors, subcontractors, and materials suppliers throughout the state of Florida. Before law school, Jason spent a decade working in the construction industry, primarily as a project manager and operations director for both new construction and remodeling. He can be reached at jason.lambert@hwhlaw.com or 813-227-8495.
