Commission remands multiemployer workplace safety case back to judge

The U.S. Occupational Safety and Health Review Commission on Thursday remanded back to an administration law judge a case that has the potential to change the U.S. Occupational Safety and Health Administration’s directives on workplace safety responsibility at sites where there are multiple employers.

At issue is Secretary of Labor v. Hensel Phelps Construction Co., in which Hensel Phelps was the general contractor on a library construction project in Austin, Texas, and was hit with a willful citation and a proposed $70,000 penalty by OSHA after inspectors found trench violations and cave-in hazards on site. Hensel Phelps challenged its liability as a controlling employer that the company had contracted out some of the work.

An administrative law judge ruled OSHA and its regulations require the protection of an employer’s own employees from workplace hazards and vacated the citation. The 5th U.S. Circuit Court of Appeals on Nov. 26, 2018, reversed and remanded the case after petition for review, concluding “that the Secretary of Labor has the authority under (OSHA regulations) to issue citations to controlling employers at multi-employer worksites for violations of the Act’s standards.”

The commission “in turn, remand(s) this case to the judge for further proceedings consistent with the court’s opinion,” stated Thursday’s remand order.