Utah Supreme Court "Repudiates" the Federal Multi-Employer Worksite Doctrine

by Stoel Rives LLP
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In an unapologetic rejection of a decades-old legal fiction hatched by the federal Occupational Safety and Health Administration ("OSHA") and embraced by Utah Division of Occupational Safety and Health ("UOSH"), on January 31, 2014, the Utah Supreme Court repudiated the multi-employer worksite doctrine. Hughes General Contractors v. Utah Labor Commission, 2014 UT 3. The Court based its repudiation on the doctrine’s “incompatibility with the governing Utah statute.”

The so-called multi-employer worksite doctrine makes a general contractor responsible for the occupational safety of all workers on a worksite, including those who are not even the general contractor’s actual employees. In rejecting that doctrine, the Supreme Court reaffirmed that the responsibility for ensuring occupational safety in Utah is limited to an employer’s actual employees.

Hughes was a general contractor overseeing a construction project involving multiple subcontractors, including a masonry subcontractor. UOSH invoked the multi-employer worksite doctrine and cited Hughes for improper erection of scaffolding in connection with the masonry subcontractor’s work, concluding that Hughes was responsible as a “controlling employer” under Section 34A-6-201 of the Utah Occupational Safety and Health Act (UOSH Act) given Hughes’ “general supervisory authority over the worksite.” Hughes challenged the legal viability of the doctrine before the Administrative Law Judge, who upheld the citation; and then the Labor Commission’s Appeals Board affirmed the ALJ’s decision. The Board based its decision on the notion that Section 34A-6-201 “mirrors its federal counterpart, which was interpreted [by the 10th Circuit] to endorse” the doctrine. Id., ¶5.

In reversing the Board, the Utah Supreme Court held that Section 34A-6-201 “is not a mirror-image of its federal counterpart, 29 U.S.C. § 654(a).” Id. ¶8. In focusing on the plain language of the Utah provision, the Court emphasized that it “imposes responsibilities for occupational safety on an ‘employer.’” Id., ¶10. In rejecting the Labor Commission’s interpretation of this provision “to extend broadly to anyone with supervisory control over a particular worksite,” the Court noted that the “text and structure of this provision are singularly focused on the employment relationship,” and that such relationship “focuses on the employer’s ‘right to control the employee’” rather than on any right a contractor may have to control “the premises.” Id., ¶¶14&15. The Court concluded that Hughes’ “general supervisory authority over the worksite,” absent any right to control the subcontractors’ workers, “did not render it an employer subject to sanctions for failure to comply with UOSHA.” Id., ¶17.

 

The Court acknowledged that the federal courts have generally upheld the doctrine as a matter of federal law, but distinguished it on two grounds. First, federal statutory duty to “comply with occupational safety and health standards is set forth in a separately sub-sectioned provision. See 29 U.S.C. § 654(a)(2).” In contrast, the Utah provision is “unitary - setting forth the responsibility of ‘[e]ach employer’ to provide a place of employment free of recognized hazards . . . in a single, undifferentiated provision.” Hughes, 2014 UT 3, ¶22. The Court reasoned that “under federal law, it is more plausible to conclude that the duty to comply with OSHA standards runs to non-employers. We find that construction untenable under our statute for reasons noted above, which are reaffirmed by the unitary structure of the Utah provision.” Id., ¶23.  Second, the Court held that the federal cases on which the ALJ and Board relied were “based on a principle of administrative deference under Chevron, 467 U.S. 837,” and that the federal courts “have not rendered an independent assessment of the meaning of 29 U.S.C. § 654(a). They have simply found the federal statute less than clear, and thus deferred to a federal agency regulation construing the statute to allow for the multi-employer worksite doctrine.” Id., ¶24. In sharp contrast, the Court held that “this approach is not a viable one under Utah law. On pure questions of law, we have not adopted a Chevron-like standard of administrative deference.” In fact, as the Court noted, “our case law has openly repudiated that approach.” Id., ¶25.

 

The Court expressly resigned itself to its limited role of determining the meaning of the statutory language, and acknowledged that it was “in no position to pick sides in the policy debate engaged in by the parties….” Id., ¶27.

 

Although this new decision may have some liberating impacts to many employers and general contractors in particular, it should be expected that UOSH’s inspection activities at construction sites will broaden to include subcontractors. This development may also prompt some legislative amendment efforts on the part of the Labor Commission.

 

 

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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