April 10, 2014

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Who’s the Boss?

Utah Court Rejects Multi-employer Worksite Doctrine

By Cole Wist and Trey Overdyke

April 10, 2014

In a significant break from federal rulings, the Utah Supreme Court recently rejected the multi-employer worksite doctrine as incompatible with the Utah Occupational Safety and Health Act (UOSH Act) in Hughes General Contractors, Inc. v. Utah Labor Comm.

Generally, the multi-employer worksite doctrine makes a general contractor responsible for the safety of all workers on a worksite, including employees of subcontractors and other third parties. In rejecting this doctrine, the Utah Supreme Court held that Utah's state occupational safety and health law regulates conduct between employers and employees and does not permit a general contractor to be held liable for the safety violations of a subcontractor.

The Multi-employer Worksite

Hughes General Contractors oversaw a construction project at Parowan High School involving more than 100 subcontractors. The Utah Occupational Safety and Health Division found that scaffolding used and erected by subcontractor B.A. Robinson in connection with the masonry work violated the UOSH Act. The UOSH compliance officer determined that Hughes was responsible for the safety conditions for B.A. Robinson's employees under the multi-employer worksite doctrine. UOSH cited and fined both Hughes and B.A. Robinson for the scaffolding violation.

Hughes contested the citation, arguing against the legal viability of the multi-employer worksite doctrine under the UOSH Act. An administrative law judge upheld the citation and the Utah Labor Commission's appeals board affirmed.

Hughes appealed to the Utah Court of Appeals, which asked the Utah Supreme Court to decide the applicability of the multi-employer worksite doctrine under the UOSH Act.

Does an Employment Relationship Exist?

Similar to its federal OSHA general duty clause counterpart, the UOSH Act requires each Utah employer to provide "a place of employment free from recognized hazards that are causing or are likely to cause death or physical harm to the employer's employees and comply with the standards promulgated under this chapter." [Utah Code § 34A-6-201(1).]

At the trial level, the Utah Labor Commission read this provision broadly to extend the safety responsibilities to anyone with supervisory control over a particular worksite. The Utah Supreme Court instead interpreted this provision as focused on the employment relationship. The court held that the duty to furnish a workplace free from recognized hazards and to comply with the UOSH Act standards is one that extends between employer and employee. The court stated "the relevant control is not over the premises of a worksite, but regarding the terms and conditions of employment."

In determining whether an employment relationship exists, the relevant factors include the existence of covenants or agreements, the right to direct and control the employee, the right to hire and fire, the method of payment (i.e., wages versus payment for a completed job or project) and the furnishing of equipment.

Applying its analysis, the court found Hughes was not an "employer" in connection with the work done by B.A. Robinson's workers. B.A. Robinson was the sole employer involved in the masonry work and controlled the workers involved in the scaffolding problems that resulted in the citations. Hughes did not have any of the rights of control that would deem it an employer in connection with the work done by B.A. Robinson's employees.

How Utah’s Law Differs

Numerous federal courts have recognized the multi-employer worksite doctrine under the federal OSH Act. However, the Utah Supreme Court analyzed the structure of the federal OSH Act and found that it sets forth the duty to comply with certain safety standards in separate sub-sections of the statute. By contrast, the court held that Utah law requires "each employer" to provide a safe workplace and to comply with promulgated standards in a single provision of the statute.

The Utah Supreme Court distinguished its decision because of the lack of administrative deference that applied in interpreting Utah law. When federal courts resolve ambiguity in a statute, the courts look to the interpretation of the statute provided by the relevant federal agency and defer to the agency's viewpoint as long as it is based on a permissible construction of the statute. However, Utah has not adopted a similar standard of judicial deference to an agency's resolution of a statutory ambiguity, so the court conducted its own independent determination to find that the Utah law did not allow for the multi-employer worksite doctrine.

An Important Victory

It is unclear what broader impact this decision may have. For now, it is a significant victory for general contractors overseeing projects in Utah. Time will tell if state courts in other occupational safety and health state plan jurisdictions will follow Utah's lead in rejecting the multi-employer worksite doctrine. Further, it will be interesting to watch the impact this may have on the multi-employer worksite doctrine in federal OSHA jurisdictions. 

Cole Wist and Trey Overdyke are lawyers at Holland & Hart.


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