MULTI-EMPLOYER CITATIONS POLICY

Multi-Employer Worksite Citations

Suppose you intermittently or frequently operate in a multi-employer work environment. In that case, this information may be relevant to you and your company’s day to day operations. In this article, MISHA news explores Cal/OSHA’s Multi-Employer Citation Policy. What is it, why your company may be at risk, and how to mitigate vulnerabilities to costly Cal/OSHA citations? This article explores a few but does not address all circumstances that may occur.

What is a Multi-Employer Worksite?

Multi-Employer Worksites are temporary or permanent workplaces where two or more companies and their employees work at the same location and usually at the same time. Multi-employer worksites can be found in many industries and are most common in the building trade. A multi-employer worksite’s hierarchy is a host employer (which may be an owner, general contractor, or both) followed by contractors, subcontractors, or temporary staffing agencies.

Types of Citable Employers at Multi-Employer Worksites

In January of 2000, the Division of Occupational Safety and Health, also known as Cal/OSHA, adapted Labor Code Section 6400, and 8 CCR Section 336.10. The section permitted the Division to cite employers in specific situations responsible for violative conditions. Cal/OSHA has categorized these employers as exposing, creating, controlling, and correcting employers. Also, an employer is citable for more than one violative category. What does it mean to be an exposing, creating, controlling, and correcting employer? Cal/OSHA has defined each of these categories and has offered examples with each definition.

Exposing Employer

Any employer who exposes their employees to a hazardous condition. Cal/OSHA cites exposing employer whether the employer created the hazard. This employer is citable whether another employer is also citable.

EXAMPLE 1: A painting contractor works on a scaffold without guardrails. The painting contractor is citable as an exposing employer unless the painting contractor can prove that Section 336.11 Exposing Employer Defense applies. More on the exposing employer defense below under the heading exposing employer defense.

Creating Employer

A creating employer is an employer whose employee created a hazardous condition. This employer is citable whether another employer is also citable.

EXAMPLE 2: A drywall contractor removes guardrails from a scaffold. Later, the painting contractor’s employees climbed the platform to work in the un-guarded area. Cal/OSHA may cite the drywall contractor for creating a hazard that led to exposing employees to a dangerous situation.

EXAMPLE 3: While erecting a scaffold, the general contractor ordered the scaffold contractor to stop and work elsewhere. The scaffolding contractor did not install all the guardrails. A few days later, the general contractor forgets the scaffold is missing guardrails and orders the painting contractor to start work. Cal/OSHA can cite the general contractor as the creating employer.

Controlling Employer

A controlling employer (CE) is responsible for safety and health at the multi-employer worksite. The controlling employer has the right to correct hazardous conditions or cause other contractors to fix them. Cal/OSHA proves employer control in any of three ways.

  1. Explicit Contract Provisions about worksite Safety
  2. Any Contract Authority that Directly Affects Worksite Safety, and
  3. Actual Practice

Explicit Contract Provisions about worksite Safety

EXAMPLE 4: In Example 1 and 2, let us say the general contractor was contractually bound to do a daily safety inspection and order quick repairs of the hazardous states found during inspections. Let us also say that a few of the subcontractors complained that the inspector, the general contractor hired to do safety reviews were not seeing them done on time. But, the general contractor never spoke to the inspector about the subcontractor’s concerns. The next day the inspector did not inspect the scaffold. The painting employees climbed up to the platform and exposed themselves to a fall hazard. Cal/OSHA can cite the general contractor for failing to use its contractual authority to prevent the violative condition.

In some cases, Cal/OSHA can cite an employer as the controlling employer even though the contract provisions say the employer does not have that right. Let’s say an employer controls the scheduling of work and does not change the work plan to stop a known hazard. Cal/OSHA can cite the scheduling employer as the controlling employer. In this case, the scheduling employer should have rescheduled to avoid exposing employees to hazards. So, Cal/OSHA can cite an employer as the controlling employer who controls the flow of information and fails to pass the information to other employers to stop employee exposures to hazardous conditions.

Any Contract Authority that Directly Affects Worksite Safety

The project contract obligates construction manager A to schedule all subcontractors. The agreement also specifies that construction manager A has no compliance authority over the worksite. Subcontractor C is contractually responsible for installing guardrails. Subcontractor B asks construction manager A to reschedule to avoid working in an area without guardrails until subcontractor C can fix them.

EXAMPLE 5. A construction manager is contractually bound to set schedules. The construction manager is contractually bound to decide whether to approve Subcontractor B’s rescheduling. The construction manager A does not reply to the request. Subcontractor B starts work without the installed guardrail, exposing its employees to the guardrail violation. Cal/OSHA can cite the construction manager for the violative condition, whether another employer is also citable.

EXAMPLE 6: Going back to Examples 1 and 2, The owner and employer of the worksite hire an engineering constructor to inspect the project’s structural specifications daily. The contract says the owner is not responsible for safety. However, the owner tries to correct safety problems once he learned of there existence. The engineering contractor does not have contractual authority to order hazardous corrections. The other contractors never relied on the engineering contractor or the owner for work-related instructions, including information about safety and health. On the day of the Cal/OSHA inspection, the engineering constructor saw the scaffold’s missing guardrails before the painters started work but took no action. Cal/OSHA will not cite the owner or the engineering contractor as a controlling or correcting employer.

Actual Practice

Regardless of whether a contract exists or what provisions it may have, Cal/OSHA uses actual worksite practices (actual behavior among employers at the worksite) to show an employer’s control over worksite safety and health.

EXAMPLE 7: Returning to Examples 1 and 2 again, the general contractor is not contractually obligated to identify, correct, or order to correct worksite safety hazards. The general contractor’s contractual authority is unclear. However, the general contractor regularly ordered subcontractors to make changes to their work, including correcting safety hazards. Also, the subcontractors never disputed the general contractor’s authority. On the morning of the violation, the general contractor was present and instructing the painting contractor’s foreman and failed to stop the painter from using the scaffold. Cal/OSHA can cite the general contractor as the controlling employer, regardless of whether other employers are also citable.

Correcting Employer 

The correcting employer is individually responsible for correcting the violative condition at a multi-employer worksite.

EXAMPLE 8: In EXAMPLE 4, the inspector worked for a safety contractor, the general contractor hired to do inspections, and is not an employee of the general contractor. The safety inspector’s employer is citable as a correcting employer.

EXAMPLE 9: In EXAMPLE 1 and 2, the general contractor hired an asbestos contractor to remove spray-on asbestos from the ceiling and interior walls before the drywall constructors start work. The asbestos contractor was obligated to remove all asbestos from the walls and ceiling. On the first day of work, the drywall contractor employees disturbed a large section of asbestos, causing the drywall contractor’s employee’s exposure to asbestos. The asbestos contractor is citable as the correcting employer.

It should be understood, each type of employer may or may not exist at the worksite under inspection. Also, an employer may fit more than one category. An example is an employer can be both a creating and a correcting employer, or a correcting and controlling employer.

Conducting a Multi-Employer Worksite Inspection

For a thorough review of Cal/OSHA’s inspection procedures, such as planning for an inspection, defining the scope of an inquiry, starting an investigation, starting a conference, and more. See MISHA news article Cal/OSHA’s Inspection Procedures.

Documenting Evident for Employer Citations

When the compliance person sees a violative state at a multi-employer worksite, the compliance person shall gather and save data such as name and address of the employer, description of the type of activity, and a copy of the contract or contracts describing the roles and duties of all the employers at the worksite. When thinking of citing a “controlling” employer, a compliance person shall decide all terms of the contract with the owner or general contractor and the controlling employer.

For each violative state the compliance person finds, the specific facts that describe the employer’s action in creating or failing to correct a violation, including those facts that shows the employer as an exposing, creating, controlling and/or correcting employer, a specific determination is made to decide their role. If an employer fits into more than one category, the compliance person will identify violations for each suitable type. Evidence will clarify the degree of responsibility of the creating, controlling, and correcting employer as follow:

Awareness of Violative Condition

When weighing the evidence, a compliance person will eventually learn when did the employer learns of the hazardous condition? Knowledge of a hazardous state and failure to correct them places more blame on the employer.

Foreseeability

Another part the compliance person must consider is foreseeability. Should the employer have foreseen the violative condition? Is the dangerous state a result of the employer’s usual work practice? An employer need not be aware of a violative condition and still be liable for its presence if the violative condition is foreseeable. The more predictable the occurrence of a hazard condition, the higher the employer’s obligation. Violations that occur most often in the employer’s field of work are also the most predictable. Also, the employer’s industry has standard practices to address foreseeable violations.

Reasonable Steps to Protect Employees

How great of an effort was made by the employer to protect their employees is always of great concern to the compliance person. Did the employer act reasonably to protect them? Employers who have violative conditions at their worksite and take no actions to fix them or prevent employee exposure have a higher degree of liability for the violation. Conversely, the employer’s liability is less if the evidence proves the employer acted sensibly to protect employees if:

  1. the information is known by or available to the employer before the violation occurred,
  2. the foreseeability of the violation,
  3. the employer’s degree of control over the violation or employee exposure to it, and
  4. the actual steps were taken by the employer to protect employees from the violative condition

All other evidence that supports or goes against citing the employer for the violation.

Exposing Employer Defense

As mentioned above, an exposing employer is citable unless the employer can prove that Section 336.11 defense applies. The compliance person must answer the following questions if the other documents do not fully explain them:

  1. Did the exposing employer create the violative state?
  2. Did the exposing employer have an obligation or the authority to correct the violative state?
  3. Did the exposing employer have the capability to repair or remove the violative state?
  4. Can the exposing employer show that the right employers were correctly notified or aware of the violative states to which the exposed employer’s employees were exposed?
  5. Did the exposing employer take corrective actions a rational person would have to protect employees from the violative state? Did the employer train the employees on how to recognize the violative state? And where needed did the employer inform the employees how to avoid the danger link to the hazard?

Citation Policy

The compliance person cites the employer for each violative condition their employees were exposed unless the evidence proves the answers to the questions in Section are F.2.b.(1) through (3) “No.” and the answers to questions F.2.b.(4) and (5) are “Yes.”

Creating, Controlling and Correcting Employers

When to Cite:

After Cal/OSHA has decided which employers are creating, controlling, and correcting employers, Cal/OSHA will cite each employer’s degree of liability for the violative condition if it is warranted according to Section F.2.a.(6),

Sample Citation Allegations

Here are sample citation claims based on the above examples in “Types of Citable Employers at Multi-Employer Worksites.” After a compliance person issues a citation, they are required to use the basic approaches listed below:

(1) Creating Employer

“On (date) employees were exposed to scaffolding without guardrails. (Creating employer) removed the guardrails from the scaffolding at (location), which resulted in the employees of (the exposing employer) being exposed to the violation.”

(2) Controlling Employer

“On (date) employees were exposed to scaffolding without guardrails, (Controlling employer) was responsible for safety and health conditions at the site (by explicit contract provisions, by other types of contract authority that directly affects safety and health, or by actual practice) and failed to protect the employees of (exposing employer) from unguarded scaffolding.”

(3) Correcting Employer

“On (date) employees were exposed to asbestos, which was not worked wet. (Correcting employer) was specifically designated to remove asbestos at (location) and failed to do so, resulting in the employees of (exposing employer) contacting and handling asbestos in a dry state.”

(4) Combination of Creating Employer and Controlling Employer

“On (date) employees were exposed to scaffolding without guardrails. (Creating employer) removed the guardrails from the scaffolding at (location), which resulted in the employees of (the exposing employer) being exposed to the violation. The employer was also responsible for safety and health conditions at the site and failed to protect the employees (exposing employer) from unguarded scaffolding.”

NOTE: If other citation allegation formats are utilized, they shall be written as concisely as possible, consistent with the requirements of particularity. See P&P C-1B, Section B.3.

Penalty Calculations

When determining “extent” and “likelihood” for the purpose of penalty calculations, the total number of employees exposed to the violative condition, regardless of who is the employer, shall be used.

Pre-Issuance Citation Review

Compliance Person
After analyzing the evidence listed above and completing the inspection, the compliance person makes a recommendation to the District Manager to issue citations for exposing, creating, controlling, and correcting employers.

District Manager
The District Manager shall review as soon as possible, all proposals from compliance person for issuing citations to exposing, creating, controlling, or correcting employers at the multi-employer worksite to determine the correctness of the citation recommendation.

Creating, Controlling and Correcting Employer

Once the District Manager has decided that a citation shall be issued to a creating, controlling, or correcting employer, the District Manager must send all proposed citations and documentation worksheets to the Regional Manager for review and agreement.

Exposing Employers
Once the District Manager decides to cite an exposing employer at a worksite, which is the subject of citations to creating, correcting, and controlling employer, the District Manager must send the proposed citations and copies of the documentation worksheet to the Regional Manager for review.

The District Manager shall review all proposals not to cite an exposing employer under Section G.1. Suppose the District Manager believes that a citation should not be issued because the employer meets the exposing employer defense. In that case, the District Manager shall talk with and receive concurrence from the regional manager before making the decision not to cite the exposing employer.

Regional Manager

The Regional Manager shall assure a prompt and thorough probe of, and respond to, all District suggestions to cite a creating, controlling or correcting employer, and all District offers not to cite an exposing employer.

Citation Appeals

All citations issued to a creating, correcting, or controlling employer of employees not exposed to the violative condition, which the employer appeals to, shall be instantly sent to the Legal Unit for representation. See P&P C-23, Section C.2.c.(1)(f).