Village People’s Construction Worker Character Wins! Court Expands OSHA Liability for General Contractors

Village People from Wikipedia 1978

The Village People (1978), from Wikipedia

According to the Official Website of the Village People, the group’s original lineup included Disco King, Construction Worker, Cowboy, Leatherman, Indian, and two “Nondescripts.” They were later joined by Cop, G.I., and Biker. Keeping with the times, as we know the Village People do, the costume formerly known as Indian has been rebranded as Native American. (True!)

But Cop or No Cop, Biker or No Biker, there has always been a Construction Worker since the band’s founding in 1977.

A recent court case involving construction workers tests whether a general contractor in control of a worksite (we’ll call him “Macho Man,” after the 1978 hit) has a legal duty to protect another contractor’s employee (we’ll call him “Hot Cop,” after a different 1978 V.P. tune), when none of Macho Man’s own employees are at risk.

The issue arose during a library construction project in Austin, Texas. One subcontractor refused to allow its employees to work near a 12-foot high wall of dirt that had not been properly sloped or reinforced. A citation was issued to the general contractor for allowing the unsafe condition, but it was undisputed that none of the general contractors’ own employees were endangered by the wall of dirt.

“Why does that matter?” you might be asking.

Although the condition was a violation of the Occupational Health and Safety Act (OSHA), the Fifth Circuit Court of Appeals had taken the position since 1981 (when the V.P. released the album, Renaissance) that “OSHA regulations protect only an employer’s own employees.”

The Court’s ruling earlier this week abandoned that rule, instead finding that a general contractor could be cited under OSHA for allowing an unsafe condition that affected only the employees of another contractor.

In response to the Court’s ruling, the Village People have reportedly abandoned plans to introduce a nebishy Health Inspector character on their next tour.

© 2018 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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New California Law Aims to Punish Contractors for Wage Violations They Did Not Commit. Huh?

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Suppose you are a general contractor, hired to erect a monument to honor Carlos Santana’s monument-worthy performance of the national anthem during last year’s NBA Finals. Because the monument will be so tall (to house the many awards he should win for it), you need to hire subcontractors. Suppose the subcontractors cheat their employees, though, and don’t pay them a proper wage.

Under a new California law, the general contractor is strictly liable for the sub’s wage violations.

There’s no balancing test. No Right to Control Test. No joint employment finding needed. It’s strict liability. Call it the Jerry Brown corollary to Colin Powell’s Pottery Barn Rule. Someone else breaks it, you own it.

I hear you: “Not fair!” But as we all know, fair is not a required feature element of employment law in California. (Fair may still be an element of due process, however, for those who may seek to challenge the constitutionality of this law.)

The new law, cleverly titled “Section 218.7,” took effect January 1, 2018.

To try to protect themselves, contractors may require their subs to show proof of payment by the subs to its employees. They may also tell noncompliant subs, “you’ve got to change your evil ways, baby, before I start loving you.” But most contractors probably won’t say that.

© 2018 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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Did You Know You Can Be Cited for OSHA Violations for Non-Employee Workers?

osha violations joint employment

Can OSHA cite your business for conditions that affect another company’s employees? Maybe.

OSHA’s Multi-Employer Citation Policy addresses who gets cited for violations that occur on a multi-employer worksite. If your company hosts staffing agency workers, that may include you.

The policy has been subjected to several legal challenges, though, based on an argument that OSHA obligations extend only to an employer’s own employees. One of these challenges is currently pending in the Fifth Circuit Court of Appeals, based on a dispute over an Austin, Texas, construction site.

While we wait for a decision, though, here’s what OSHA has to say about its authority to issue citations on multi-employer worksites: Continue reading

Don’t Wear Pajamas to Work: Be Careful Using “Statutory Minimum” Workers Comp Clauses in Subcontractor Agreements

Pajamas - Independent Contractor Agreements and Workers Compensation ClausesHave you ever had the dream where you show up at work or school in your pajamas or underwear? You’re exposed and embarrassed in the dream, and you can’t figure out why you forgot to put on regular clothes, right? (Please don’t tell me I’m the only one who’s had this dream. Please?)

You may be living this dream inadvertently in your vendor or subcontractor agreements. (And this is not what people mean when they say, “I’m living the dream!”)

Here’s the problem:

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Court Serves Up Reminder that Contractors Can Be Properly Classified and Misclassified – At The Same Time.

elephant-reminder pennsylvania court joint employment joint empoyer construction workplace misclassification act

A recurring theme in this blog has been that when trying to determine Who Is My Employee?, there are different tests under different laws. Different tests can yield different results.

A recent court decision from Pennsylvania emphasizes this point. In the Keystone State (proud home of Dunder Mifflin and Hershey Park), contruction workers are considered employees for workers compensation purposes unless they (i) have a written contract, (ii) have a place of business separate from their general contractor’s site, and (iii) have liability insurance of at least $50,000. This strict test is courtesy of the Construction Workplace Misclassification Act (CWMA), an Act whose name shows a disappointing lack of creativity.

I might have gone with “Construction Occupation Workers’ Act Regarding Designations In Classifying Employees” (COWARDICE) or “Law About Misclassifying Employees” (LAME) or, if I was hungry for shellfish, then maybe “Construction Law About Misclassification for Builders And Keeping Employees Safe” (CLAMBAKES).

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