On Friday June 10th, after oral argument, Sacramento Superior Court Judge Lloyd Connelly issued his preliminary decision in Overaa Construction's petition for a writ of mandate to overturn the Occupational Safety and Health Appeals Board's decision against it. The decision is bad news for Overaa, but may be good news for companies who find themselves cited as "controlling" employers under California's multi-employer workplace regulation, Title 8 CCR sec. 336.10.

Connelly ruled that while there was ample evidence to support the Board's finding that Overaa failed to exercise "due diligence" in this case, the decision was less than clear as to whether the Board will allow consideration of "due diligence" by "controlling" employers in determining liability.

This firm represented Associated General Contractors of California as a "friend of the court" in the hearing.

You may recall that the Board's decision held that Cal/OSHA need not prove a "controlling" employer's lack of due diligence in issuing citations under 336.10. It also stated that due diligence is not an issue in determining liability under 336.10, which led many to believe that the Board had adopted a strict liability standard for multi-employer worksite violations. In its briefs opposing Overaa's writ, however, the Board said that its decision did not create a strict liability standard. The Board stated that it never reached the larger issue, but instead intended to leave the question of what may constitute due diligence to further consideration on a "case-by-case" basis.

Judge Connelly found that the Board has the authority to determine whether section 336.10 allows consideration of the "controlling" employer's "due diligence" in determining the employer's liability. If so, the Board is empowered to determine whether the "due dilegence" issue is Cal/OSHA's burden to disprove, or an affirmative defense which the employer must raise and prove.

Connelly ordered the decision remanded for amendment to clarify the Board's intentions. Attorneys for the Board and Overaa have 90 days to agree to the language of the final order. In the interim Cal/OSHA's chief counsel Mike Mason stated that Cal/OSHA intends to continue using the Overaa decision as precedent in citing "controlling" employers.