Rules + Regs

Appeals court reverses multiemployer citation rule

On Nov. 26, 2018, the U.S. Court of Appeals for the Fifth Circuit ruled the Department of Labor can issue citations to certain employers at multiemployer work sites for violations of occupational safety law standards even if the hazardous condition affects another employer's workers. The ruling reverses previous case law.

The case reviewed by the U.S. Court of Appeals for the Fifth Circuit stems from alleged dangerous working conditions present during a library excavation project in Austin, Texas. The project's general contractor, Hensel Phelps Construction Co., Greeley, Colo., controlled the work site and contracted with Haynes Eaglin Waters LLC, Austin, in 2014 to work on a wall portion of the project. Later that year, Haynes Eaglin Waters contracted with CVI Development LLC, Austin, to complete demolition, excavation and additional work involving the wall.

During excavation on a rainy day, a 12-foot vertical wall of soil developed, and no protective systems were placed to prevent cave-ins as required by the Occupational Safety and Health Administration (OSHA). Although CVI Development was assigned to reinstall reinforcing rods at the wall's base, Karl Daniels, CVI Development's owner, sent his employees to work in another area while awaiting instructions from Hensel Phelps Construction or Haynes Eaglin Waters regarding how to proceed given the poor conditions.

An Austin city inspector told Daniels the workers only should be working at the wall excavation, and the project superintendent told Daniels to have his employees complete the wall excavation. After describing the dangerous conditions to the Haynes Eaglin Waters project manager, Daniels was told to send his employees back to the excavation area to complete the work.

The same day, OSHA's Austin area office received a complaint of hazardous conditions, and a compliance officer inspected the excavation site and cited CVI Development and Hensel Phelps Construction for willful violations after observing CVI Development employees working at the base of the unprotected wall of soil. Hensel Phelps Construction contested the citations, and an administrative law judge (ALJ) said an Occupational Safety and Health Review Commission precedent says an employer must protect all workers engaged in a common undertaking and can be held responsible for other employers "where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite."

However, the ALJ decided he could not apply that precedent to allow the citation against Hensel Phelps Construction and concluded an employer at a work site within the jurisdiction of the U.S. Court of Appeals for the Fifth Circuit can't be held in violation of the safety law when the employees exposed to the hazard worked for a different employer.

ICE increased enforcement during 2018

Immigration and Customs Enforcement (ICE) conducted four times as many work-site inspections and made more than seven times as many arrests during fiscal year 2018 compared with the previous fiscal year, according to Bloomberg Law. The agency's increased efforts are in line with its earlier promise to ramp up work-site immigration enforcement.

ICE launched 6,848 work-site investigations and 5,981 audits of businesses' employment verification forms during fiscal year 2018. There were 1,691 work-site investigations and 1,360 audits during fiscal year 2017.

The nature of the agency's work-site enforcement efforts reflects a shift from the Obama administration's focus on employer paperwork violations to an emphasis on raids and arrests of unauthorized immigrants favored by the Trump administration. ICE undertook several high-profile enforcement actions at workplaces during fiscal year 2018, including an April 2018 raid on a slaughterhouse in Bean Station, Tenn., that resulted in the arrest of 104 undocumented workers and an August 2018 raid on a trailer manufacturer in Sumner, Texas, that resulted in the arrest of 160 undocumented workers.

It could take years before tangible monetary effects of ICE's increased work-site enforcement efforts are realized by businesses. Criminal indictments and convictions follow investigations that "can take months to years to fully develop," ICE said in a Dec. 11, 2018, statement.

ICE received $10.2 million in judicial fines, forfeitures and restitutions during fiscal year 2018. Civil fines during fiscal year 2018 increased to $10.2 million from $7.8 million during fiscal year 2017.

OSHA's use of drones prompt employer concerns

Occupational Safety and Health Administration (OSHA) inspectors now are authorized to use camera-carrying drones during their inspections of outdoor workplaces.

In a written statement released Nov. 27, 2018, OSHA said drones have been used for nine inspections under the guidance issued in 2018. Drones often were used at work sites following an accident where conditions, such as a building collapse or chemical plant explosion, were too dangerous for compliance officers to enter the work site. OSHA inspectors ask for an employer's approval of a drone flight before an aircraft is launched; if the employer objects to its use, the drone will not be used.

Attorneys who represent businesses in OSHA cases told Bloomberg Law employers should be wary of giving OSHA inspectors blanket permission to fly remote-controlled aircraft above work sites. Some are concerned OSHA may use drones to get around Fourth Amendment rights, which protect people from unreasonable searches and seizures; an inspection could be broadened if an inspector spots a serious hazard in plain sight using a drone.

In May 2018, OSHA called upon each of the agency's 10 regions to designate a staff member as an unmanned aircraft program manager. The unmanned aircraft program managers will oversee training requirements and evaluate reports submitted by drone teams.

All OSHA drone missions require a three-member flight team—a pilot, a "visual observer" and a safety monitor. Drone crews must follow Federal Aviation Administration rules.