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The Cohen Group Newsletter - Volume 18  Issue 3, Article 4.  September 2007

  A Classic Example of a Cal/OSHA Citation Against the Controlling Employer
By Mark Golembiewski, CIH

Earlier this year, a DOSH Administrative Law Judge’s decision was published, outlining the findings of a case in which a residential housing development contractor was cited and fined as the controlling employer for two fall protection violations pertaining to the work activities of one of its subcontractors at the jobsite. 

The general contractor was cited as the controlling employer at the jobsite for a framing subcontractor’s failure to provide required fall protection to framing workers exposed to fall hazards.  The subcontractor employees were working on two roofs that were more that 15 feet above the ground and another employee was working at an unguarded second-story window opening.  The Cal/OSHA inspector noted that other subcontractors would be working at the site as the construction work progressed and would also be exposed to the observed hazards. 

Although the general contractor vigorously argued that it was not a controlling employer because it had no duty to ensure the health and safety of the subcontractor’s employees, that argument was rejected.   The ALJ ruled that the general contractor was not divested of its duty to ensure compliance with safety orders by its contract with the subcontractor, even as the subcontractor admitted that his company was responsible for the safety of its own employees.  Further, the judge noted that the general contractor had general supervisory capacity over the jobsite, including the power to inspect for hazards and to ask a subcontractor to stop an unsafe practice and correct it.  He also ruled that the general contractor had the authority to ensure that a hazardous condition was corrected, even if the subcontractor had the primary authority and responsibility for that correction.  The ALJ concluded that DOSH had properly cited the general contractor as the controlling employer in this case.

This case is a good example of why every general contractor should conduct daily, informal, walk-around inspections of their jobsites to look for safety violations, in addition to performing scheduled, formal inspections that are documented and made part of their site safety performance record (as required by their IIPP).  Constant safety vigilance at the jobsite is critical to maintaining control of the site work activities.  Once subcontractors begin to sense that safety surveillance by the general contractor is lax at a jobsite, problems can begin to surface.  The Cohen Group can provide you with assistance if you have any questions about how to implement your jobsite safety inspection program.