The U.S. Court of Appeals for the Sixth Circuit has rejected a roofing contractor’s claim it should not have been cited by OSHA because the alleged offenses were performed by an independent contractor. Absolute Roofing & Construction, Inc. v. Secretary of Labor, No. 13-4364 (6th Cir. Sept. 9, 2014). The Sixth Circuit has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee.
OSHA cited Absolute Roofing & Construction, Inc. for four violations involving scaffolding and fall protection during a 2011 inspection after finding a carpenter working on a church roof. The agency determined that on this job, the worker was an Absolute employee, a finding the companydisputed. The agency assessed $21,120 for the violations. Absolute appealed, but an administrative law judge of theOccupational Safety and Health Review Commission stood by the agency.
The ALJ had determined the carpenter was not credible because his testimony deviated from what he had told two OSHA compliance officers during the inspection. The ALJ also had found that a subcontract agreement between Absolute and the worker did not apply to his work at the church. The Commission denied discretionary review of the ALJ’s decision.
Before the Sixth Circuit panel, Absolute disputed the ALJ’s credibility finding. However, specifically referencing five instances where the worker’s testimony differed from what he had told inspectors, the panel rejected Absolute’s contention. The judges noted too the ALJ’s comment that the worker’s ongoing relationship with Absolute “‘appear[ed] to have influenced his testimony.’ ˮ
Absolute also argued the ALJ improperly applied the Darden test to determine employer-worker employment status announced by the U.S. Supreme Court in its 1992decision. But, going through the Darden criteria point by point, the Sixth Circuit found 10 of the 13 elements favored an employer-employee relationship in this case as opposed to independent contractor status. The judges dismissed Absolute’s assertion that the ALJ had erred in not naming the worker and the company he owned asindispensable parties to the litigation. Absolute was correctly named as the only defendant, the Sixth Circuit held, because the ALJ had properly found the carpenter to be Absolute’s employee and the worker’s company had played no part in the church work.
Finally, Absolute complained the inspectors had failed to allow its owner to participate in the inspection. However,the jurists concluded that since Absolute had notcomplained about this alleged exclusion earlier in the litigation, they lacked jurisdiction to consider it.