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Court Affirms Multi-Employer Law

Posted on Sep 20, 2011
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Worksafe Prevails in Key Health and Safety Legal Battle
Third District Court of Appeal ruling caps four and half years of litigation

Oakland, CA – On September 16, 2011, Worksafe, Inc. won a hard-fought legal victory. California’s Third District Court of Appeal upheld a Superior Court writ establishing that the state’s Occupational Safety and Health Appeals Board (OSHAB) improperly ruled when it made it more difficult for the government to enforce safety and health regulations against controlling employers on multi-employer worksites.

According to the law, an employer who is responsible, by contract or through actual practice, for safety and health conditions on a jobsite, must protect all workers exposed to the hazards, not just the employer’s own employees. 

“The controlling employer can’t put its head in the sand and disclaim all responsibility for dangerous hazards just because those hazards are created by another employer,” said Gail Bateson, Executive Director of Worksafe, an Oakland-based nonprofit that advocates for workplace safety and health. “This decision reinforces that principle. It’s a real victory for workers.”

The case – United Association Local Union 246, AFL-CIO v. Occupational Safety and Health Appeals Board – arose from an incident in which an apprentice pipefitter was seriously injured while fixing a leaking water line. California’s Division of Occupational Safety and Health, the agency that enforces health and safety regulations, issued citations to both the worker’s employer, a subcontractor, and general contractor Harris Construction.

“The struggle to assure that all employers on a multi-employer worksite take responsibility for health and safety conditions has been a long one.  Worksafe and the California Labor Federation sponsored legislation which became effective in 2000 and assured that all workers would be protected.  It is unbelievable that the OSH Appeals Board continued their long pattern of trying to narrow the requirements of the law,” stated Frances Schreiberg, co-counsel in the case, who became involved in this struggle when she filed a complaint with Federal OSHA against the Cal/OSHA program in 1994. “This is about safety. It’s about making sure that a controlling employer as well as an employer who exposes his or her workers, creates a hazard, or the employer who has responsibility for correcting a hazard, all take care. The idea here is to avoid sacrificing safety because one employer just points the finger at another and says ‘it wasn’t my responsibility.’” 

Harris Construction had contracted to retain authority over safety, including the ability to stop dangerous work and the power to take corrective measures. The company admitted that it had “played an active role in safety,” holding safety meetings and talking regularly with the subcontractor’s staff.

The Board, comprised of appointees from an earlier administration, ignored its own precedent and ignored an earlier ruling by the Court of Appeal when it let the general contractor Harris off the hook.  It did so by ruling that the Division (the enforcement agency) had to shoulder an additional burden and prove the employer had been “in a position to abate” the specific violation at issue.

“On jobsites with multiple employers—which you can find in construction, hospitals, agriculture, and plenty of other industries—the state needs to be able to make sure that employers with responsibility for safety and health are actually fulfilling their responsibilities,” said Worksafe attorney Corey N. Friedman. “The Appeals Board doesn’t have the power to override the Legislature, so it can’t make the Division jump through extra hoops.”

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Worksafe is a California-based nonprofit organization dedicated to protecting people from job-related hazards and empowering them to advocate for the right to a safe and healthy workplace. For more information, visit www.worksafe.org.

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