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The Occupational Safety and Health Review Commission issued a decision in April that eliminated the “controlling employer” doctrine in construction industry matters. Secretary of Labor v. Summit Contractors, Inc., OSHRC Docket No. 03-1622.

Summit is a general building contractor. In 2003, it was the prime contractor for the construction of a college dormitory in Little Rock, Arkansas. At the job site, Summit employed only a superintendent and three assistant superintendents. These employees coordinated vendors, scheduled various subcontractors and ensured that work was performed according to contract.

An OSHA officer observed Summit’s job site and found that the brick subcontractor’s employees were not protected from falls in various places at the job site. It was undisputed that none of these individuals were working for Summit, although Summit employees were present at the job when the hazardous conditions occurred. After the initial observations from OSHA but before the official site inspection, Summit instructed the subcontractor to rectify the safety violations. Still, after OSHA’s inspection, OSHA issued Summit a citation as a controlling employer in accordance with OSHA’s multi-employer worksite doctrine. The subcontractor was also cited.

Summit contested the citation. Summit contended that its employees were not exposed to the hazard and, therefore, could not be cited for violations occurring at its job site. The Commission painstakingly reviewed the history of the controlling employer doctrine and the underlying regulation. The underlying regulation clearly provides that the employer's obligation is to protect “his” employees. The Commission, therefore, found the Secretary’s enforcement position against the employer controlling the worksite was improper. As Summit had no employees exposed to the violation, the Commission vacated the citation against Summit.

Absent further rulemaking or an appellate reversal of this decision, general contractors may no longer be cited by OSHA for merely controlling a worksite. Of course, general contractors may still be liable under applicable state laws or to the extent that any of their employees are exposed to the potential hazard.