Appeals court considers OSHA joint-employer ruling
- The U.S. Court of Appeals for the Fifth Circuit is considering a November appeal from the Occupational Safety and Health Administration to reverse a Texas administrative law judge's decision to invalidate a long-standing agency practice of holding multiple employers responsible for one company's violations if deemed appropriate, according to JD Supra.
- The rule was recently challenged in a Texas circuit court when a judge vacated an OSHA citation issued to a Texas general contractor on the grounds that its subcontractor did not protect its employees from excavation hazards. The judge ruled that the general contractor should not have been cited because it had not exposed its employees to the hazards.
- OSHA maintains that the general contractor was in a position to "create, correct or control" work even if its employees were not exposed to the sub's excavation hazards, in line with the agency's "controlling employer" policy.
Joint-employer regulations also were challenged at the Department of Labor in June. The DOL withdrew guidance on the use of independent contractors, which made more firms jointly responsible for misclassified workers, a practice that was meant to reduce wrongly categorizing employees as independent contractors. The DOL guidance made it easier for executives to be held responsible for how subcontractors handled independent contractors and employees, but a recent House bill could tighten that interpretation.
The House passed Bill 3441, the Save Local Business Act, this month that requires proof that an employer had direct control in order to be liable as a joint employer, according to Human Resource Executive Online.
Meanwhile, California has increased liability for prime contractors for payment of wages by subcontractors. Beginning Jan. 1, prime contractors will have to make good on subs' employee wages if a sub, for whatever reason, does not pay them. Prime contractors will be able to request documentation from subcontractors to prove they paid their employees, but even with the best contractual protections, prime contractors are on the hook for unpaid wages and benefits.
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