Fifth Circuit Rules that OSHA’s Multi-Employer Citation Doctrine Applies to Texas, Louisiana and Mississippi

Breaking with 37 years of its own prior decisions, the US Court of Appeals for the Fifth Circuit ruled in November 2018 that the US Occupational Safety and Health Agency’s so-called “multiemployer citation doctrine” applies within the Fifth Circuit (Texas, Louisiana and Mississippi). In Acosta v. Hensel Phelps Construction Company, the Court overturned its longstanding rule that “OSHA’s regulations protect only an employer’s own employees.”

In Acosta, the Fifth Circuit held that the US Secretary of Labor has the authority under the OSHA Act:

“to issue a citation to a general contractor at a multi-employer construction worksite who controls a hazardous condition at that worksite, even if the condition affects another employer’s employees.”

The case arose from the construction of a new public library in Austin in 2015. Defendant Hensel Phelps Construction Company was the general contractor to subcontractors working on demolition and excavation at the worksite. OSHA issued a citation to Hensel Phelps for creating a hazardous condition because it directed employees of CVI Development LLC (the excavation subcontractor) to install rebar into a wall of soil on a rainy day in violation of the following regulation:

“Each employee in an excavation shall be protected from cave-ins by an adequate protective system . . . except when: (i) Excavations are made entirely in stable rock; or (ii) Excavations are less than 5 feet (1.52m) in depth and examination of the ground by a competent person provides no indication of a potential cave-in.”

OSHA issued the citation based on its multi-employer citation policy under which an employer who causes a hazardous condition (a “creating employer”) or a general contractor or other employer having control over a worksite who should have detected and prevented a violation through the reasonable exercise of its supervisory authority (a “controlling employer”) may be cited for a violation, whether or not its own employees were exposed to the hazard.

OSHA considered Hensel Phelps a “controlling employer” because the company had “general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.”

Hensel Phelps contested the citation at the OSHA Review Commission. The administrative law judge agreed with OSHA based on the Commission’s prior rulings, but ultimately vacated the citation based on the Fifth Circuit’s nearly 40-year history of rejecting the multi-employer citation doctrine.

The Secretary of Labor petitioned the Fifth Circuit to review the Commission’s decision.

The Fifth Circuit’s November opinion adopting the multi-employer citation doctrine relied on the US Supreme Court’s 1984 Chevron decision in which the Court ruled that federal courts must accept a federal agency’s reasonable interpretation of a US statute even if the agency’s reading differs from what the court believes is the best statutory interpretation.

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