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Cal/OSHA's Coming Civil War
March 2009
Issue 31
Readers of this e-zine know that the battle over "controlling" employer liability for accidents on multi-employer worksites (MEWs) is on-going. For new readers, or as a refresher, see our brief "Overaa, Harris and Beyond" (PDF) which has just been uploaded to our website's Articles page. Here's a head's up to what looks to be an entertaining dog fight between two DIR agencies.
By way of background, in Overaa the Appellate Court held that the Cal/OSHA Appeals Board has jurisdiction to decide the existence and elements of an affirmative defense for "controlling" employers. In Harris Construction, and later in Hearn Construction, the Appeals Board had a chance to describe that defense, but never reached the issue. Instead it focused on what Cal/OSHA must prove to establish "controlling" employer status in the first place. Briefly, the Board held that contractual language and general activity is not enough: Before finding that an employer is a "controlling" employer, Cal/OSHA must show that the employer had reason to know of the specific hazard complained of, and had the means and opportunity to fix the problem.
Cal/OSHA believes that because the definition of "controlling" employer in Labor Code section 6400(b) is stated in general terms, the Appeals Board does not have the freedom to force it to look to specifics before branding an employer as "controlling." While Harris languishes in appellate purgatory, Cal/OSHA Chief Len Welsh is not willing to wait for it to be overturned. Believing that the Appeals Board has saddled his inspectors with an impossible task, he is pushing a new regulation, section 336.12, to establish the elusive "controlling" employer affirmative defense.
The regulation is intended to shift the burden of proof from the Division to establish that an employer is "controlling," to the employer to prove it is not.
To qualify for the defense, an employer will have to show that before the beginning of a subcontractor's work it took "reasonable" steps to identify and control "serious" hazards, including but not limited to "high-hazard operations." It also must act promptly to abate any newly-discovered hazards by doing all of the following:
- Taking all "practicable" steps to insure that employees will not be exposed;
- Notify employers of employees "likely to be exposed" of the existence of the hazard;
- Notify the creating and correcting employers of the hazard; and
- Verify and document the corrective measures taken to abate the hazard.
The Division does not define what "high-hazard operations" are. It does give examples of what the Division considers "serious hazards reasonably to be anticipated," but notes that the list is not intended to be inclusive.
Finally, all of these efforts must be adequately documented or the defense fails.
The Division has written the defense on the assumption that the entity seeking to use it knows it will be a "controlling" employer well before the events triggering a Cal/OSHA inspection, and that it had the opportunity to take all the detailed steps required to qualify for the defense. In the case of a large general contractor that may be expected. It will be less clear to other employers.
Consider, for example, that the Division believes there can be more than one "controlling" employer on a job site. Yet the proposed regulation provides no notice to landowners, project managers and subcontractors with third-tier subs who aggressively pursue safety concerns that they may find themselves in the "controlling" employer spotlight.
While resolution of the question of who constitutes a "controlling" employer and the elements of an affirmative defense against that status is highly desirable, it is uncertain whether a regulation - especially this regulation - is the preferred answer. Since Labor Code section 6304.5 was amended in 2000 to provide that workplace safety regulations are again admissible against employers in personal injury litigation, the plaintiff's bar has gained renewed interest in the uses to be made of Title 8 regulations in personal injury actions.
Most interesting, however, is that Cal/OSHA has crafted the proposed regulation to marginalize the Appeals Board and eviscerate the Harris and Hearn decisions. The opening paragraph of the regulation establishes that its provisions shall be the only defense to "controlling" employer status. The second paragraph directs the Appeals Board to follow the provisions of the regulation exclusively.
It is highly questionable whether the Board would be legally bound to follow the Division's regulation. The appellate courts have held that the Board is pre-eminent in the interpretation of standards and regulations, and that it is not bound by the Division's interpretation of Title 8 regulations, much less the Labor Code. See Limberg Construction Cal/OSHA App. 78-433 DAR (2/21/80) and Bostrom-Bergen Metal Products Cal/OSHA App. 00-1012 DAR (1/1/0/2003). See also Labor Code section 55, which authorizes the Director of Industrial Relations to "segregate" the work of the departments and boards under his or her control.
While adoption of this new regulation appears to be a done deal, the first stop in the review process will be… the Cal/OSHA Appeals Board.
We can't wait.
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