The Occupational Safety and Health Review Commission vacated a series of Occupational Safety and Health Administration (OSHA) citations of a Missouri construction company in a final decision on June 4. A review commission administrative law judge (ALJ) concluded that the Department of Labor (DOL) couldn’t establish evidence of an employer-employee relationship or employer knowledge of violations.
OSHA issued four sets of citations to Pettengill Family Restoration (PFR) following inspections of worksites between January 11 and October 3, 2023. PFR has a contract with Framing Specialists, Inc., to frame and assemble kit houses at various home construction sites.
Because OSHA had cited Pettengill Construction, which was owned by PFR’s owner, with workplace safety and health violations, it cited PFR with repeat violations.
On January 11, 2023, an OSHA compliance safety and health officer (CSHO) driving home at the end of the workday observed two workers on the roof of a residential construction site in Blue Springs, Missouri. The CSHO pulled over to take photographs and approached the jobsite. She observed that the workers weren’t wearing fall protection and that one of the workers was applying plywood to rafters with a pneumatic nail gun without wearing face or eye protection. She also observed workers without head protection.
The agency cited PFR with repeat, serious violations of the eye and face protection and fall protection standards.
Other agency CSHOs observed plain-view safety violations driving past PFR jobsites in Lake Lotawana, Missouri, on April 21, April 25, and October 3, 2023. After additional inspections, OSHA cited PFR with serious violations of the head protection standard; repeat, serious violations of the scaffolding standard; and additional repeat, serious violations of the eye and face protection and fall protection standards.
The primary issue in the review commission case was whether PFR was the employer of workers at the Missouri jobsites.
The ALJ found little evidence that PFR controlled the manner or means by which work at jobsites was completed. Framing specialists provided on-site workers with blueprints and necessary building materials and inspected the quality of work as construction progressed.
Workers at the jobsites had signed independent contractor agreements of indefinite duration with PFR. They required little supervision, offering further evidence of an independent contractor relationship. Workers were paid a fixed hourly rate for work performed on each project and reimbursed for equipment expenses. Two workers hired their own children as assistants on PFR projects, but PFR didn’t hire or pay those assistants.
PFR maintained a workers’ compensation policy covering workers who performed construction services under contract for the company. However, PFR didn’t withhold state, federal, or local taxes on behalf of the workers. The company also didn’t provide annual or sick leave or retirement benefits.
The ALJ in the case also concluded that OSHA didn’t meet the burden of establishing employer knowledge of the violative conditions. The ALJ found no evidence that PFR’s owner had any knowledge of violations at the worksites, and the owner didn’t visit or supervise worksites.
Because the ALJ could find no evidence of an employer-employee relationship or employer knowledge of safety violations, OSHA’s citations and proposed penalties were vacated.