Preferred used subs to perform all other roofing jobs. Preferred Vice President James Snead testified that Preferred does not directly supervise the work of its subs if the sub has its own on-site supervision. Mr. Snead would visit jobsites to ensure compliance by subcontractors as to the terms of the contract that would also include compliance with safety standards. If Mr. Snead had concerns, he would conduct additional spot-checks and he had authority to stop work and correct observed unsafe conditions. Mr. Snead would raise issues with the on-site crew or with the sub’s site supervisor.

Preferred had subcontracted with Valor Roofing Company to perform certain roofing work. Prior to entering into the subcontracts, Mr. Snead and Preferred’s chief of operations met with Valor’s owner to discuss the subcontracts’ terms as well as certain issues that Preferred had with prior subcontractors complying with safety standards and cleanups. The contract between Preferred and Valor required Valor to comply with “all statutory and contractual safety requirements,” provide its employees with all safety training and safety equipment and required it to notify Preferred with notice of an on-the-job injury. Pursuant to the contract, Preferred retained oversight of the job and required Valor to provide Preferred access to the job site and written progress reports, if necessary. Valor was prohibited from erecting any signs displaying its name on the job.

Within two weeks of Valor’s work, Mr. Snead visited two job sites for which Preferred had subcontracted with Valor. At one site, Mr. Snead found a person without fall protection and notified Valor’s owner and on-site supervisor who remediated the issue. At the second site, Valor was complying with all safety procedures.

Preferred had contracted with a home-owner to re-roof a single-story home in Jacksonville and Valor had been assigned to perform the work, which was scheduled to take one day. The roof pitch measured 5:12 and the lower eave was nine feet above ground. On July 18, 2023, OSHA’s Compliance Safety and Health Officer Diane Cuyler was driving and observed several men working without fall protection. She conducted an inspection which revealed that three roofers were working a 10-foot to 25-foot-high roof with the 5:12 pitch that were not using any form of fall protection. CSHO Cuyler learned that Valor was a subcontractor for Preferred. At the site, she spoke to one of the workers and asked for his supervisor and she was directed to Preferred employee, James Taylor.

Mr. Taylor initially said he was the supervisor and called his supervisor, Mr. Snead. However, Valor’s part owner and on-site supervisor, Jarren Stevens, returned to the site and indicated that he had just left the site and had left Mr. Taylor in charge. Afterward, CSHO Cuyler met with Mr. Snead and Mr. Taylor. Mr. Taylor denied he was a supervisor at that time.

She also met with Mr. Stevens, who indicated that he had in fact hired a third party to perform the work. CSHO Cuyler attempted to contact his alleged third-party contractor but was unsuccessful. She subsequently issued a two-item citation to Preferred for failing to provide fall protection and for failure to properly secure a portable ladder under OSHA’s multi-employer worksite policy.

The multi-employer worksite doctrine provides that an employer owes a duty pursuant to the Occupational Safety and Health Act “not only to its own employees but to other employees at the worksite when the employer creates and/or controls the cited condition.” An employer is liable “for violations of other employers where it could be reasonably expected to prevent or detect and abate the violation due to its supervisory authority and control over the worksite.” Moreover, a general contractor is recognized as a controlling employer due to its overall supervisory capacity.

Here, Preferred provided and delivered materials necessary to perform the work while Valor provided the equipment and labor. Preferred was responsible for obtaining the permits, arranging inspections and supplying all plans and designs, and retained the right to inspect and approve the work.

Although the subcontract placed responsibility on Valor for supplying safety equipment and training to its own employees, as per Mr. Snead’s testimony, Preferred still had authority to require Valor comply with their safety obligations even if it lacked its own on-site supervisor at the job. Consequently, based on Preferred’s overall control of the work and its authority to require compliance with safety requirements, Preferred was deemed the controlling employer and liable for these OSHA citations.

About the author: Costas Cyprus, Esq., practices construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 or [email protected]. Articles in this series do not constitute legal advice and are intended for general guidance only.