Eleventh Circuit Says General Contractor Was Responsible for Subcontractor's Safety Practices

Parker Poe Adams & Bernstein LLP

Parker Poe Adams & Bernstein LLP

Under the Occupational Safety and Health Administration’s multiemployer worksite doctrine, a company can be cited for safety violations that it did not create and for hazards to which its own employees were never exposed. The doctrine is used most often in the construction industry, where a general contractor (GC) is cited for safety violations committed by a subcontractor used on the worksite. OSHA says that if the GC is a “controlling employer,” it must exercise reasonable care to detect and correct safety issues with all employers working on the construction site.

Last week at oral argument, judges for the Eleventh Circuit Court of Appeals (which includes Georgia) soundly rejected a GC’s contention that it did not control the safety practices of subcontractors used on the project. In FAMA Construction LLC v. U.S. Department of Labor, OSHA cited the GC and assessed almost $300,000 in penalties for repeat fall protection and other violations by roofing subcontractors at a residential construction project. The GC argued that it was not a controlling employer liable for the subcontractor’s activities because those subs were independently incorporated businesses and FAMA never attempted to oversee or control their safety practices.

The Eleventh Circuit judges rejected these arguments, noting that the roofing subcontractors had worked for FAMA for years. The GC had control over their work, held safety seminars, and could fine or remove subs for poor safety practices. This relationship fell squarely within the multiemployer worksite doctrine.

General contractors reading this might be tempted to react by ending all efforts to oversee subcontractor safety practices at their worksites. Although not addressed in this case, OSHA can cite GCs under multiemployer worksite doctrine if they fail to take reasonable measures to oversee the subcontractor’s safety practices. In other words, ignorance will not serve as a defense to these citations.

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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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