Practitioner Insights: Don’t Get Stung by an OSHA Citation if Your Subcontractor is Responsible

(The following article is reproduced with permission from Occupational Safety & Health Reporter, 47 osh 48, 12/07/2017. Copyright 2017 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com. Author Andrew N. Gross is a principal, officer and General Counsel of HB NEXT Corp.)

Many mid-tier construction contractors win contracts to supply labor and materials, then subcontract out the entire labor portion. They frequently encounter problems when Occupational Safety and Health Administration cites them for workplace hazards, contending that the labor subcontractor’s employees are employees of the mid-tier contractor.

This is troubling when the mid-tier contractor has no employees working at the job site, and its on-site appearances are limited to project managers checking up on the labor subcontractor’s progress and work quality. The practice of subcontracting out all labor is common in certain trades. In my practice, I see it most often in masonry, roofing, drywall, and framing.

If cited by OSHA, you or your mid-tier contractor client will have to defend a citation alleging responsibility for safety hazards confronted by workers employed by other employers. In defense of the citation, it is vital to be able to show that another employer, presumably the labor subcontractor, is an independent contractor and the responsible employer.

Upon a credible, evidence-based showing, OSHA can and will withdraw the citation. If withdrawn at the OSHA-area office informal conference, there won’t be any need to file a contest and incur the expense and risk of litigation.

There is no ‘‘get out of jail free card’’ inoculating the mid-tier contractor from an OSHA citation, but wise labor subcontractor selection and monitoring, good drafting of the labor subcontract, and proper payroll reporting can limit the mid-tier contractor’s exposure, if not avoid it entirely.

Continue reading to view information in the following areas:

• Burden of Proof
• Who Employs the Workers?
• Selection of Labor Subcontractor
• Drafting the Labor Subcontract
• Conduct at Jobsite
• Dealing with Flowdown Responsibility
• Multiemployer Jobsites

Practitioner Insights: Don’t Get Stung by an OSHA Citation if Your Subcontractor is Responsible

Contact HB NEXT for more information concerning OSHA citations and other legal matters when staying OSHA compliant. HB NEXT offers decades of experience in solving your safety and environmental construction industry challenges.