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| 1 minute read

Occupational Safety: Remember the "Creating Employer" Doctrine

The Occupational Safety and Health Review Commission (OSHRC) recently highlighted the importance of the “creating employer”(*) test for identifying liability for safety violations at multi-employer worksites. In Secretary of Labor v. ACrane Rental, LLC, OSHRC remanded a case where an administrative law judge (ALJ) dismissed an OSHA crane safety violation relying solely on the “controlling employer”(**) test. OSHRC concluded that the ALJ should have also considered the creating employer based on testimony from the OSHA compliance officer that the crane company was a creating and exposing employer.

The case reinforces that employers’ responsibilities at a multi-employer worksite are a critical factor in determining whether an employer is a creating, exposing, correcting, or controlling employer. If an employer falls into one of these categories, it has obligations with respect to OSHA requirements and could be cited for failing to fulfill its obligations.


(*) A “creating employer” is the employer that caused a hazardous condition that violates an OSHA standard. A creating employer can be cited in instances where none of its employees are exposed to the hazard but employees of other employers are exposed. 

(**) A “controlling employer” has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.

The Occupational Safety and Health Review Commission (OSHRC) is underscoring the importance of the “creating employer” doctrine for identifying liability for safety violations at multi-employer worksites, as the panel remanded for new proceedings a case where an administrative law judge (ALJ) rejected an OSHA crane-safety violation under separate test for identifying “controlling” employers at such sites.

Tags

osha, workplace safety, ehs, employer, employee

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