Since its establishment in 1970, the federal Occupational Safety and Health Administration ("OSHA") has implemented an enforcement approach that creates tension between employers, general contractors and subcontractors. Too often companies give little thought to such critical issues as which employer has primary responsibility for compliance with mandatory standards, and which controls hazards at a worksite and directs the activities of the workforce, until after an inspection has occurred and citations have been issued.

OSHA may issue parallel citations to general contractors (construction) or prime employers (general industry) and their subcontractors for the subcontractor's alleged violations. As discussed below, the April 2007 Summit Construction decision1 by the Occupational Safety and Health Review Commission has imposed some limitations on OSHA's authority to hold construction companies responsible for subcontractor violations, but that case is currently on appeal before the U.S. Court of Appeals, 8th Circuit. In addition to costing companies significant money in civil penalties – currently, OSHA civil penalties can reach $70,000 per violation -- OSHA's dual citation policy often pits one employer against another in litigation, which can carry over to breach of contract claims in a civil litigation arena. It also carries ramifications for tort actions arising from the death or personal injury of a non-employee at the worksite, because there may be no worker's compensation shield from such litigation.

The Mine Safety and Health Administration ("MSHA") also has authority to cite both mine operators and contractors for violations of the Mine Act and its implementing regulations, and the U.S. Court of Appeals' (DC Circuit) July 2006 ruling in Twentymile Coal2 held that MSHA has unreviewable discretion in this matter. Therefore, even if a mine operator has no knowledge of a contractor's violation and no significant involvement with the contractor's activities, it can be subject to a maximum civil penalty of $220,000 per citation, as well as possible criminal prosecution under the Mine Act's strict liability doctrine.

Significantly, both OSHA and MSHA citations can be introduced in some state tort actions to prove "negligence per se." This legal theory simplifies a plaintiff's burden of proof on the "breach" element of a prima facie negligence case. Negligence per se allows the plaintiff to prove the defendant's "breach" of a duty of care by showing simply that the defendant violated a statute or regulation that (a) covers the class of activities giving rise to plaintiff's injuries, and (b) was designed to protect the class of persons to which plaintiff belongs.3 Therefore, it is imperative that general contractors take appropriate action to manage subcontractor risks from the outset and ensure that the companies who will provide services pursuant to a contractual agreement are aware of applicable federal/state safety agency compliance obligations, have employees who are trained and supervisors who are competent, and that demonstrate a commitment to safety and health through appropriate safety and health management programs. This legal theory simplifies a plaintiff's burden of proof on the "breach" element of a prima facie negligence case.

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