To: AGC of America
1957 E. St.
Attn. Carl Heinlein
Re: Comments on ACCSH Draft Multi-Employer language.
As you requested in your fax dated 4-19-99, enclosed are my comments on the Multi-employer language proposed by ACCSH.
It is my understanding that there has been extensive research provided by OSHA on the affects the Multi-Employer language may have on the construction industry. The studies to date have shown that there would be minimum additional expense, and this would be absorbed first by the owner, then the tiers of contractors and therefore have no extreme burden to any single entity. This would make any additional expense manageable and recoverable all in the name of a safe and healthy work environment.
This study was apparently focused at our industries present state of growth and health boosted by the healthy US economy. The question posed is what happens in a weaker market creating a tighter bid market. If the answer to this question is the same entities will continue to absorb the expense (of dictated means and methods of performing their work). Many smaller employers may not be able to absorb this additional expense with a lower volume of work and no means to give back the liability that will be assumed under this language.
I would like to have definitions/interpretations on:
C.6. more than one employer may be citable for the same condition what affirmative defense will OSHA accept from the ("controlling, exposing, or correcting") employer to show their actions taken are or are not sufficient to provide/enforce a safe work place.
C.6.a.(1) reasonable care standard/and what is enough to show that reasonable care has been take. Would the compliance officer have the perception that since there is an alleged violation of the OSHA standard reasonable care has not been taken (we see this now without having a new open book policy)
C.6.d. "To be citable as a controlling employer or manager it must have failed to exercise its responsibly to prevent, discover or correct a hazard.
Again we are back to what is reasonable care? This is read as though, if there is anything that does not take specialty equipment or trade knowledge an upper tier employer will be cited for this violation regardless of subcontractor employee non compliance or subcontractor noncompliance, unless reasonable care was provided by the "controlling employer" therefore there would have been no hazard. Catch 22 either your wrong or your wrong!
C.6.e. Contractual Control
Contracts are written to delegate responsibilities and bind the contractor to perform his/her work per plans and specs, these contracts are detailed but very seldom do they dictate means and method to a sub contractor/trade contractor. In the real world schedules for completion of a project is the responsibility of the general contractor and is some case the responsibility of the construction manager. To make these schedules, coordinate subcontractor, efforts verify that correct products are being used on the job per specs, etc. daily observation walk-throughs are made. According to the reasonable care in this section, a general contractor/construction manager must assume all responsibility or absolutely no responsibility with no right to direct a subcontractors/trade contractors employee. The no responsibility approach does not work due to if an entity creates, updates or insists on a schedule date, which is what the most of us are paid to do, they have assumed responsibility (per the Multi Employer document interpretation) of directing the ongoing work.
The bottom line with Multi-Employer language added into law is the added liability to any upper tier contractor. This language in a short time can create a "reasonable care" or "responsibility" in the court system. Allowing third party claims against the upper tier with little or no means for the upper tier to defend from an assumed reasonable care standard, without an employee-employer relationship in which the employer has the ability to direct workers actions.
How can we be the controlling employer and assume the liability of a worker we did not hire, cannot terminate, do not direct, did not train, do not pay, etc. and in many cases do not have knowledge of the work and the subcontractors worker is performing?
My opinion is there should not be any multi-employer language considered until there has been an affirmative defense designed and agreed upon by the entity whom will be enforcing multi-employer responsibilities and the industry this language will affect. I am aware that there are state plans that have an effective multi-employer/controlling employer policy, but in these plans are times that the upper tier contractor can proved to relieve themselves of undue liabilities. Some of these policies were provided to AGC representatives at the AGC meeting in Pittsburgh Penn, with no response from the individuals writing the Multi-employer language.
In conversations with local OSHA representatives, local AGC, and project owners the greatest fear that many had at the time of initial multi-employer/controlling employer language (that was only in the new proposed steel erection standard) has now began to come true. The FL OSHA are offices kicked off a new special emphasis program backed by Atlanta regional offices with a full jest at "controlling employers". This "controlling employer" directive was not ins tell erection but for the entire construction industry. A quote from this meeting in Jacksonville FL made by the Atlanta OSHA representative: "There are a lot more general contractors and construction managers in the area than there are OSHA compliance officers, therefore we (OSHA) are going to go after the General or the Construction Manager to make them make the sub work safely." This OSHA representative went further to say that there would be no good faith recognized or focused inspections given to the controlling employer unless they had a written safety program that included the sub contractors and their workers.
If I can be of any assistance in this matter please don't hesitate to contact me.
Jeff L. Byrd
Director of Safety & EEO