"We hold that an employer's status as a controlling employer subject to citation under section 336.10 is dependent on whether the employer was in a position to abate the specific violative condition at issue."

With that conclusion in Harris Construction Company, Inc. OSHAB 03-3914 DAR March 30, 2007, the Cal/OSHA Appeals Board took a giant step towards re-establishing the "rule of reason" for California employers tagged as "controlling" employers in multi-employer workplaces.

Until now, Cal/OSHA's Enforcement arm, and the Appeals Board's judges, have interpreted the infamous C. Overaa & Sons decision and those following it as imposing strict liability upon "controlling" employers.

The Appeals Board, whose membership and outlook has changed dramatically for the better since Overaa was handed down, has established new ground rules for Cal/OSHA, first, to prove that an employer is a "controlling" employer and, second, to establish a violation based on its conduct.

Here are some quotes from the case:

• "[A] determination regarding an employer's status as the 'controlling employer' must consider the specific hazard in question and may not be based on a general responsibility for safety and health."


• "Our belief that discretion must be used in determining when to cite a controlling employer is bolstered by the Division's citation policy governing MEWs [an abbreviation first used by our own Lisa Prince] contained in its Policy & Procedure Manual."

• "We further conclude that the relative roles and responsibilities of the different employers do not remain static throughout the course of a project. *** We believe responsibility for safety requirements should be placed on those who have the greatest practical opportunity and ability to insure compliance with the applicable safety standards."


• "[W]e find that general contractors are not charged with staying abreast of their subcontractors' every activity. We do not believe general contractors are required to consult with their subcontractors about each step they plan to undertake in their work as well as the manner in which they plan to undertake it. A general contractor is not charged with that level of oversight."


• "[T]he Division must ... demonstrate that the [controlling] employer was in a position to abate the specific violative condition...."


• "If Cal/OSHA proves a violation, "...the employer may assert that the violation occurred at a time and under circumstances which deprived it of a reasonable opportunity to detect and prevent it. *** This defense is available for both serious and general violation citations...."