DECEMBER 2010
$4.95
BNmag.com
SUBCONTRACTOR
LIABILITY
ARE YOU YOUR BROTHER’S KEEPER?
PAUL M. OSTROFF AND ROBERT A. BATTLES, LANE POWELL PC
c o lu m ns :: L AW
Subcontractor liability
Are you your brother’s keeper?
Paul M. Ostroff and Robert A. Battles
You have just been awarded a large contract
violations caused by employees other than
to build a new project, a long-awaited one
their own.
that will move your company into the next
Workplace injuries and safety violations
:: Establish a clear line of communication
between all subcontractors regarding safety
and health issues.
:: Perform random audits of a
stages of growth. In order to compete in the
can cause delays, reduce employee morale
process, you hire multiple subcontractors to
and add costly litigation. A general contractor
subcontractor’s safety program while a
work with you (the general contractor). This
may also be cited and fined for safety
project is ongoing.
is an exciting time, and everyone is ready
violations of a subcontractor under OSHA. So,
to go. However, this excitement can turn
a safe workplace also makes good economic
a general contractor can vary, depending on
into a nightmare if you fail to manage your
sense and is good for business.
how specialized your subcontractor might be.
subcontractor’s safety programs.
The U.S. Department of Labor’s
What should I do? Your responsibility
to control the worksite carries over to
The amount of oversight and control by
When in doubt, assume that the duty lies with
the general contractor.
A general contractor’s duties do not
Occupational Safety and Health Administration
controlling subcontractors on your worksite.
(OSHA) holds a general contractor
Your authority to remove individuals who
stop with the initial safety review of the
responsible for the safety and health of
are violating work safety practices includes
subcontractor. A general contractor must be
their subcontractors on a worksite. (Those
subcontractor employees.
vigilant in enforcing a process that will both
jurisdictions that have a state program must be
at least as effective as the OSHA standard.)
As safety and health laws constantly
change, general contractors must be
discover and control potential safety violations.
Common sense and due diligence in
vigilant to familiarize themselves with the
reviewing a subcontractor’s safety and health
is important to revisit this question
subcontractor’s safety program to ensure they
program can avoid potential liability and save
periodically so that your business is always
have complied with safety and health laws.
lives. It makes good business sense.
aware of its responsibilities. If you hire
Knowing that you have a duty is not enough;
specialty subcontractors for construction
you need to act. Here are some simple steps
on fixed industry jobs, you are probably
that may help you to avoid citations:
Are you a general contractor? It
a general contractor for the purposes of
potential liability.
The general contractor’s responsibility
:: Ensure your own safety and health
program is in place. This is done through
developing and implementing an accident
is based on an independent “duty of care” to
prevention program that includes the
all employees on a particular worksite. Many
safety roles and responsibilities of each
state jurisdictions have taken this duty of care
subcontractor. This program should be tailored
beyond the general contractor, applying it to
for each particular job. The general contractor
subcontractors who hire other subcontractors
should have a written, site-specific plan.
on a project. Thus, many subcontractors may
:: Every good safety and health program
also be in the same position of responsibility
must have an enforcement component. When
and liability, just as a general contractor is for
reviewing the safety and health program of a
the subcontractor(s) they hire.
subcontractor, the general contractor should
Why does this matter? As a general
contractor, you have responsibility for your
own employees. But many general contractors
ensure that the subcontractor enforces its
own program.
:: Every subcontractor should have its own
do not have procedures in place to handle
accident prevention plan and site-specific
their safety and health responsibilities with
plan. These should be reviewed by the general
subcontractors. Why is this so important?
contractor before the subcontractor starts
Not only is it the right thing to do—to be
any work on the jobsite.
concerned about everyone’s safety on a
:: Require, by contract, that the
worksite—the general contractor has the
subcontractor comply with all safety and
potential liability for safety and health
health laws.
Paul M. Ostroff
is a Shareholder at Lane
Powell, where he provides
advice and counsel to
employers in all phases of
labor and employment law.
He regularly represents
employers before federal
and state courts and
administrative agencies.
ostroffp@lanepowell.com :: 503-778-2122
Robert A. Battles
is Counsel to the Firm
at Lane Powell, where
he represents clients in
regulatory and complex
litigation matters including
Occupational Safety and
Health investigations and
defense. Prior to joining
Lane Powell, he was with
the Washington State
Attorney General’s Office for 10 years and represented
the Department of Labor and Industries.
battlesr@lanepowell.com :: 360-753-7604
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