Seyfarth Synopsis: As expected, OSHA has appealed an ALJ ruling that severely limits OSHA’s “controlling employer” enforcement policy. Acosta v. Hensel Phelps Constr. Co., No. 17-60543 (5th Cir. 8/4/17).

This case involves an unprotected excavation at a construction site that both parties agreed was in in violation of OSHA’s trenching standards. The Respondent was the general contractor on the construction project with overall control and responsibility for the worksite. The Respondent also had management employees on site who were present at the excavation who “could have easily” prevented the subcontractor’s employees from working in the unprotected excavation but did not do so. However, the Respondent did not have any of its own employees who were exposed to the hazardous excavation.

OSHA cited Respondent as a “controlling employer” under OSHA’s multi-employer policy and longstanding Occupational Safety and Health Review Commission precedent that has held that “an employer who either creates or controls the cited hazard has a duty under § 5(a)(2) of the Act, 29 U.S.C. § 666(a)(2), to protect not only its own employees, but those of other employers ‘engaged in the common undertaking’.” McDevitt Street Bovis, Docket No. 97-1918 (Sept. 28, 2000). “An employer may be held responsible for the violations of other employers ‘where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.”’ Summit Contractors, Inc., Docket No. 05-0839 (Aug. 19, 2010).

Nonetheless, while the Commission has upheld “controlling employer” citations based on exposure to another employer’s employees, this violation occurred at a jobsite in Austin, Texas, which was under the jurisdiction of the U.S. Court of Appeals for the 5th Circuit. In 1981, the Fifth Circuit ruled that the OSH Act, its legislative history, and implemented regulations, serve to protect “an employer’s own employees from workplace hazards.” ALJ’s emphasis. Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981). Accordingly, rather than follow Commission precedent and uphold the citation, the ALJ found that “where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case – even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Service, Docket No. 96-1719 (Mar. 16, 2000). Therefore, the ALJ ruled that “applying 5th Circuit precedent, Respondent cannot be liable for a violation of the Act based solely upon a subcontractor’s employees’ exposure to the condition,” and vacated the citation.

OSHA is appealing the ALJ’s decision to the 5th Circuit hoping that the 5th Circuit will reverse its 1981 holding in Melerine v. Avondale Shipyards, Inc. This case represents a serious threat to OSHA’s multi-employer policy. If upheld by the 5th Circuit, OSHA’s “controlling employer” policy may be in jeopardy. We will keep our readers apprised as this case develops.