General Contractor Responsibility for Subcontractor OSHA Violations
General contractors, and others who take responsibility for multi-employer construction operations, should take note that the North Carolina Court of Appeals has recently affirmed the multi-employer workplace doctrine with respect to violations of OSHA safety standards.
In the case of Commissioner of Labor of the State of North Carolina v. Weekley Homes, LP (March 15, 2005), a unanimous Court of Appeals held a general contractor supervising the construction of 38 houses was liable for violations of OSHA standards by the employees of a subcontractor. The Court held the general contractor liable even though the contractor neither created the hazard nor exposed any of its employees to the hazard.
The general contractor, Weekley Homes, coordinated subcontractors, materials and homeowners for 38 houses under construction in a new subdivision in Huntersville, North Carolina. Weekley employed two "builders" who carried out the construction schedule on 6 to 10 houses at a time. In March 1999, a Safety Compliance Officer with the North Carolina Department of Labor observed individuals working on a steep pitched roof more than 6 feet from the ground without fall protection. As a result, the Compliance Officer conducted an inspection of the subdivision construction site and observed employees of a subcontractor working without fall protection at 3 locations. As a result of the investigation, the Department of Labor cited Weekley Homes for failure to conduct "frequent or regular inspections of the job site . . . as part of an accident prevention program."
The citation against the general contractor was upheld by Administrative Law Judge, and affirmed by the Safety and Health Review Board. The citation against Weekley for subcontractor misconduct was also affirmed by the superior court.
On appeal to the North Carolina Court of Appeals, Weekley Homes argued the Safety and Health Act (OSHA) made a general contractor responsible only for the safety of his own employees. The contractor contended neither Congress nor the North Carolina Legislature imposed a duty on an employer to protect the employees of its independent contractors. The general contractor noted both North Carolina General Statute 95-129 and Federal Statute 29 U.S.C. § 654(a) imposed a duty on each employer to furnish a safe workplace and to comply with specific standards regarding "his own" employees.
The Court of Appeals, in a unanimous decision, rejected the general contractor's interpretation of the statutes. The Court stated neither State nor federal statutes specifically addressed whether an employer is responsible for a violation of standards by a subcontractor's employees on a multi-employer work site. The Court agreed the North Carolina statute imposes a "general duty" on an employer to protect his own employees. The Court went on to state, however, this statute does not serve to limit the duty of the employer to only his employees. The Court pointed to N.C. General Statute 95-126(2) which declared the purpose of the Occupational Safety and Health Act "to ensure so far as possible every working man and woman in the State of North Carolina safe and healthful working conditions and to preserve our human resources." The Court concluded this broad purpose was inconsistent with a narrow interpretation restricting a general contractor's responsibility solely to its employees.
The theory underlying the multi-employer workplace doctrine is that since the general contractor is subject to OSHA regulations by virtue of being engaged in the construction business and it has to comply with those regulations in order to protect his own workers at the site, it is sensible to think of the general contractor as assuming the same duty to other workers at the site who might be injured or killed by violations of the regulations. The Court said it is reasonable to impose upon the general contractor the duty to assure that other contractors fulfill their obligations for employees' safety that affect the whole construction site. The Court placed a limitation on the general contractor's liability to the extent the violations could not reasonably have been expected to be prevented or abated by reason of the general contractor's supervisory capacity. The Court held a general contractor's duty under North Carolina General Statutes relating to occupational safety and health requires "each employer . . . comply with occupational safety and health standards or regulations" and this extends to the employees of subcontractors on job sites if it could reasonably have been expected that the general contractor could have detected the violation by a simple inspection of the job site.
This decision by the Court of Appeals affirming the multi-employer doctrine is applicable, not only to general contractors, but also architects and engineers in supervisory positions on design-build projects and to project managers who take on overall supervision of construction projects. It is extremely important the party in overall charge of a multi-employer construction site develop, implement and maintain an effective safety program not only for its own employees but which also encompasses the safety of subcontractor employees.
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