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Two Massachusetts Companies Operated as Single Employer, OSHA Judge Finds, Upholds Citations

  • May 8, 2017

Two Massachusetts contractors were operating as a single employer at a worksite in Massachusetts when at least two employees of a roofing crew fell from a wooden plank in October 2014, an Occupational Safety and Health Review Commission administrative law judge has ruled.

The employees were standing on a ladder jack scaffold, performing a residential roofing job, when the wooden plank snapped, plunging the workers 20 feet to the ground.

Following an investigation, the Occupational Safety and Health Administration found the wooden plank was not graded for scaffold use and the invoice for the wooden plank stated, “NOT FOR STAGING,” or not for scaffold use. OSHA also found deficiencies in the scaffold’s components and structure and the employees had no fall protection. One roofer told investigators, “I believe that I was up on the roof, to my knowledge, and the next thing I knew, I was on the ground.”

In April 2015, OSHA designated the two contracting companies as “a single employer,” noting that their work operations, worksites, management, and supervision were “closely interrelated and integrated.” Contesting the citations and penalties, one of the companies asserted it was not responsible for the safety of the workers on the jobsite because it was the general contractor and the other company employed the workers. (The owner of the second company died in December 2016, so the claims against his company were extinguished.)

Occupational Safety and Health Review Commission Administrative Law Judge Sharon D. Calhoun ruled on February 28, 2017, the companies were operating as a single employer at the time of the inspection in 2014.

ALJ Calhoun found significant that the purported general contractor:

  • Had checked to make certain workers were tied off;
  • Had responsibility for safety on its worksites;
  • Had the ability to fire or discipline workers;
  • Had instructed the other company regarding the crew size;
  • Had signs at the worksite, and the other company did not; and
  • Had said it had no subcontractors when applying for building permits.

Calhoun upheld most of the citations, ruling the company is responsible for paying $173,500 in penalties.

Jackson Lewis attorneys are available to discuss the implications of this decision and other developments.

©2017 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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