Guilt by Association…lessons learned from a recent OSHA experience

Situation Recently, a GC client hired a small roofing contractor (presumably because they were the low bid on the job).  But the GC (who is very committed to safety and runs a very tight operation) FAILED to check the OSHA compliance history of the “cheap” roofing contractor they’ve used for a number of years.

During a job, OSHA showed up and cited both the roofing contractor and the GC for not having proper fall protection and failure to enforce fall protection, respectively.  The GC claimed they maintained and enforced a fall-protection policy on their jobsites and that the roofer knowingly violated the program.  OSHA disagreed, and went ahead and still issued the citations.

Lesson Learned An internet search of OSHA’s compliance history database shows that this roofing contractor had five inspections since 2007 – quite a few inspections with violations for a small roofing company.  More concerning, the two most recent inspections involved REPEAT violations for fall protection issues. I strongly suspect the compliance officer showed up because they recognized the name of the roofing contractor, observed violations, and issued violations to all. 

A 30 second check of OSHA’s Establishment Search (https://www.osha.gov/pls/imis/establishment.html) revealed all of the previous violations, which if known before the job could have avoided a lot of hassle.

Resolution OSHA was attempting to hold the GC responsible under the Multi-Employer Worksite Doctrine*.  But in this case, the superintendents for the GC had extensive training in how to handle an OSHA inspection.  They asked the inspector to wait about an hour for the owner to arrive, accompanied the inspector around the site, took pictures on their smartphone of the same things the inspector did, etc.

At the OSHA Informal Conference, we (along with the client) were able to successfully mount the “Employee Misconduct Defense.”  This was largely in part to the evidence that was collected by the superintendent at the time of inspection which was able to defend gains the OSHA allegations.
The result was:

• 2 Violations against the GC were tossed out, avoiding $5,800 in fines
• As importantly, this GC does a majority of their work for oil and gas clients, who DO check OSHA violation as part of their pre-qualification process.  Avoiding these two violations means they can continue to maintain a clean record and get the work from a significant customer segment who takes safety very seriously

Everyone is busy and competition for work is fierce, but next time you’re looking for multiple bids for a job and the numbers come back close, you may want to suggest your estimators take a minute to take a look at a subcontractor’s OSHA history before making their decision on whom to award the work to.  It may save you from having to cram a meeting with OSHA into your busy schedule because of something someone else’s employees did.

*For additional information on the Multi-Employer Worksite Doctrine, see article from Mark Lies & Eliabeth Ash (Seyfarth Shaw), “THE FURTHER EXPANSION OF THE MULTI-EMPLOYER WORKPLACE DOCTRINE”