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By J. Kent Holland, Esq
ConstructionRisk Counsel, PLLC

The Utah Supreme Court rejected the multi-employer worksite doctrine as incompatible with the governing Utah statute, holding, “The responsibility for ensuring occupational safety under the governing statute is limited to an employer’s responsibly to its employees.  And because the cited contractor in this case was not an employer of the workers in question [subcontractor employees], we reverse the citation and penalty at issue.”  Hughes General Contractors, Inc. v. Utah Labor Commission, 322 P.3d 712, 2014).

The violation at issue concerned improper use and erection of scaffolding in connection with masonry work performed by one of the 100 subcontractors on a high school project.  In addition to citing the subcontractor, the state OSHA cited the general contractor for failure to inspect and take correction action – concluding that the GC was a “controlling employer,” in that it had general supervisory authority over the worksite.  In holding to the contrary, the court found that the governing state statute was not an mirror-image of the federal statute, but that it was limited to requiring that “each employer … furnish each of the employer’s employees employment and a place of employment free from recognized hazards….”

The court concluded that, “the text and structure of this provision are singularly focused on the employment relationship.”  So the duty to furnish a workplace free from recognized hazards is one that runs only to “each employer.”  And “employer” is defined “in terms that contemplate a tradition employment relationship—and that accordingly forecloses the multi-employer worksite prince applied below.”  An employer, says the court, is “one who engages employees under a contract of hire.”  Looking a the definition of “employee” in the state statute, the court found it to be defined a circular manner to be “any person suffered or permitted to work by an employer.”

Comment:

The key to the court decision is its determination that the critical question is whether the entity being charged with a violation by OSHA had a right to control the individual that was injured.  Since the state statute adopted a legal term-of-art understanding of the employment relationship that focuses on the employer’s “right to control the employee,” the court concluded that, “the relevant control is not over the premises of a worksite, but regarding the terms and conditions of employment.”  That concept of employment, says the court, forecloses the “multi-employer” construct that was the bases of the citation.

 

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 16, No. 8 (August 2014).

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