Utah Rejects the Multi-Employer Worksite Doctrine: General Contractors are Only Responsible for the Safety of Their Employees at a Worksite

by Snell & Wilmer
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The Utah Supreme Court recently held in Hughes General Contractors, Inc. v. Utah Labor Comm’n that the multi-employer worksite doctrine, which makes a general contractor responsible for the safety of all workers at a worksite, “is incompatible with the governing Utah statute” under the Utah Occupational Satefy and Health Act (UOSHA).[1] Hughes is a significant ruling because it breaks from those decisions that relied on the Federal Occupational Safety and Health Act (OSHA) to enforce the multi-employer worksite doctrine.

Factual and Procedural Background
The appellant, Hughes General Contractors, was the general contractor that oversaw a comprehensive construction project at a high school in southern Utah that involved over 100 subcontractors.[2] During construction, the Utah Occupational Safety and Health Division found, among other things, that scaffolding used in connection with some masonry work that was performed by a subcontractor violated UOSHA.[3] Because Hughes was the general contractor, the safety inspector tried to hold it responsible under Utah Code section 34A-6-201 as the “controlling employer” under the multi-employer worksite doctrine for the unlawful safety conditions arising out of the subcontractor’s faulty work.[4] As a result, both Hughes and the subcontractor were cited and fined.[5] Additionally, Hughes was cited for allegedly failing to inspect and take corrective action, as purportedly required by Utah Administrative Code rule 614-1-5(d)(3).[6]

Of course, Hughes challenged the citation, and maintained that the multi-employer worksite doctrine did not apply under UOSHA.[7] The Administrative Law Judge, however, upheld the citation and the Utah Labor Commission’s Appeals Board affirmed.[8] The Appeals Board reasoned that the Utah statute at issue, section 34A-6-201, “mirrored its federal counterpart” and applied federal case law that upheld the multi-employer worksite doctrine.[9] Hughes appealed to the Utah Court of Appeals, which then certified the case to the Utah Supreme Court.[10]

The Hughes Court’s Analysis
In a case of first impression, the Utah Supreme Court rejected the multi-employer doctrine as a matter of Utah law and reversed the citation imposed against Hughes because (1) section 34A-6-201 of the Utah Code does not contemplate the multi-employer doctrine, (2) the federal authority relied on by Appeals Board was distinguishable in several ways, and (3) the policy bases for advancing the multi-employer doctrine were not relevant to the Court’s interpretation.

I. Section 34A-6-201 of the Utah Code does not contemplate the multi-employer doctrine.

At the outset, the Court stated that the governing UOSHA provision was not a mirror image of its federal counterpart, U.S.C. section 654(a).[11] Section 34A-6-201 states:

Each employer shall furnish each of the employer’s employees employment and a place of employment free from recognized hazards that are causing or are likely to cause death or physical harm to the employer's employees and comply with the standards promulgated under this chapter.

The Court interpreted this provision to mean that the safety responsibilities proscribed therein extend only to a single employer “as concerning its own employees” because (1) the text and structure of the provision are singularly focused on an individual employee-employer relationship, (2) the definition of “employer”[12] contemplates a traditional singular employee-employer relationship, and (3) the definition of “employee”[13] is defined in a circular manner that incorporates “employer.”[14]

Important to the Court was that the legal understanding of the traditional employment relationship focuses on the employer’s “‘right to control the employee,’ the ‘right to hire and fire’ and the ‘method of payment’ (i.e., wages versus payment for a contemplated job or project), and ‘the furnishing of equipment.’”[15] Thus, Hughes could not be held responsible for the subcontractor’s violations when there was no employment relationship, or right to control in connection with the masonry work. Instead, Hughes had general supervisory authority over the entire worksite that happened to include the subcontractor and its employees.[16]

II. The federal authority enforcing the multi-employer worksite doctrine is distinguishable.

The Court distinguished the federal authority relied upon by the ALJ and Appeals Board because (1) the terms and structure of the federal statute are distinct and (2) federal cases supporting the doctrine were based on the administrative deference principle under Chevron,[17] a concept that is not viable under Utah law.

First, the federal statutory construction regarding the duties to comply with safety and health standards is set forth in a separately sub-sectioned provision, whereas the Utah provision is unitary and sets forth “each employer” in a single clause. [18] The Court noted that federal statutory construction makes it more plausible to find that the duty to comply with OSHA standards can include non-employers, while the Utah statute emphasizes that the duty to comply is “part and parcel of the employment relationship.”[19]

Second, Utah law does not follow the Chevron-type administrative deference used by federal courts when construing an ambiguous statute subject to implementation by an agency. Most of the federal courts that have upheld the multi-employer doctrine have not rendered an independent assessment, but have deferred to the federal agency’s interpretation.[20] Utah courts do not adhere to this deferential approach, and, in fact, have repudiated it.[21]

III. The Court’s ruling was based on statutory interpretation and did not include an analysis of the policies supporting enforcement of the multi-employer worksite doctrine.

Lastly, the Court made clear that its role was to only interpret the relevant statutes and not to “pick sides in the policy debate engaged in by the parties ….”[22] While the Court acknowledged the general purpose of UOSHA is to enhance workplace safety, it could not infer that the legislature intended to extend certain statutory duties to general contractors at a worksite.

Conclusion
It will be interesting to see whether other jurisdictions with state specific occupational safety legislation will follow the reasoning in Hughes and similarly reject the multi-employer worksite doctrine. At a minimum, this case may be a helpful roadmap for such courts to make an independent assessment as to whether the multi-employer worksite doctrine is contemplated in their OSHA-type statutes.

Although this new decision alleviates some liability exposure for general contractors, it may nevertheless broaden the inspection activities at construction sites and incite increased lobbying efforts to amend UOSHA to include the multi-employer worksite doctrine.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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