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For OSHA Purposes, First Circuit Deems Subcontractor Employee of General Contractor

    Client Alerts
  • February 21, 2018

Construction contractors are familiar with the Occupational Safety and Health Administration’s Multi-Employer Worksite rule. Under this rule, a general contractor (GC) can be held liable for safety violations committed by subcontractors on the construction site — if the GC exercises sufficient control over safety conditions and practices. Earlier this month, the First Circuit took a different legal approach, concluding that a general contractor actually employed the subcontractor and was therefore directly liable for safety violations without resort to the Multi-Employer Worksite test.

In A.C. Castle Construction Co., Inc. v. Acosta, OSHA cited both a GC and its subcontractor for willful violations relating to a scaffolding collapse that injured two of the subcontractor’s employees. The GC appealed the citation on the basis that it was not the employees’ statutory employer and therefore could not be held liable for the violations. The federal administrative law judge (ALJ) concluded that the subcontractor and its employees were common law employees of the GC. The subcontractor was a sole proprietor who derived almost all of his work from the GC. The GC helped the subcontractor hire and fire employees when needed, provided building materials, and served as the sole enforcer of safety policies at the worksite.

Based on these findings, the First Circuit affirmed the ALJ’s determination. In this case, the GC exercised such a large and unusual degree of control over the subcontractor’s operations that it was legally the supervisory employer of the subcontractor. Unlike most such relationships, the GC consistently controlled most details over how the subcontractor performed its work. The GC was therefore liable as the employer for the safety of the subcontractor’s workers, without the need to demonstrate the Multi-Employer Worksite factors.

General contractors often struggle with the legal contradiction that imposes increasing liability for safety practices when they assert control or supervision over their subcontractors’ safety practices. GCs should construct, implement, and document their safety compliance programs with a full understanding of the legal responsibilities imposed under OSHA rules.