[Congressional Record Volume 143, Number 156 (Saturday, November 8, 1997)]
[Extensions of Remarks]
[Page E2232]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      INTRODUCTION OF LEGISLATION TO CLARIFY THE OSHACT REGARDING 
               RESPONSIBILITY ON MULTIEMPLOYER WORKSITES

                                 ______
                                 

                          HON. CASS BALLENGER

                           of north carolina

                    in the house of representatives

                        Friday, November 7, 1997

  Mr. BALLENGER. Mr. Speaker, one of the characteristics of the new 
OSHA, according to the Clinton administration, is that it will focus 
not on numbers of citations, but on results. Unfortunately, OSHA's 
policy with regard to multiemployer worksites shows just the opposite 
approach.
  It is clear from the Occupational Safety and Health Act that in 
general each employer is responsible for the working conditions and 
health and safety of his or her own employees. However, early 
administrative and court decisions recognized that under limited 
circumstances an employer could be cited by OSHA if the employer 
created the violation even if the employees who were in danger as a 
result of the violation were employed by another employer. So, for 
example, an employer could be cited for storing heavy material near the 
edge of the top floor of a construction site which endangered employees 
of other employers working on the floor below.
  In recent years, OSHA has stretched and stretched the limits of that 
legal test in order to artificially increase its numbers of citations 
and to achieve, through its enforcement, a policy of creating a site 
controlling employer responsible for all working conditions on the 
site. Specifically, OSHA has taken the enforcement position that a 
general contractor or owner should always be responsible for safety on 
the entire worksite. As a result, OSHA has begun to routinely cite 
general contractors even where the contractor's employees are not 
exposed to the violation and the contractor's employees did not create 
or have control over the violation. Instead, the basis of the general 
contractor's liability is simply that the general contractor, or owner, 
should have overall responsibility of the job site, regardless of what 
the facts and circumstances actually showed.
  In that regard, OSHA has adopted a position for enforcement that 
follows Democratic-sponsored legislation in the 102d and 103d 
Congress--legislation which failed to pass. A central tenet of those 
bills was that either a contractor or the owner would be liable in all 
cases for any safety and health hazards on the worksite. Despite the 
defeat of that legislation, OSHA has attempted to implement the same 
policy through enforcement.
  Ironically, OSHA's current enforcement policy on multiemployer 
liability is leading to less safety, not more. General contractors and 
owners are increasingly reluctant to include any language regarding 
safety and health responsibilities in contracts with subcontractors, or 
to take action on subcontractor safety problems that come to the 
attention of the general contractor or owner. This is done out of 
concern that any such contract language or action will be used by OSHA 
as the basis for claiming that the general contractor or owner has 
assumed responsibility for all safety and health on the worksite, and 
is therefore liable for any and all violations on the worksite, 
including those solely created by a subcontractor.
  My legislation is intended to reestablish the earlier interpretation 
regarding liability of multiemployer worksites. Under the bill, an 
employer may only be cited for an OSHA violation if the employer's own 
employees are exposed to the violation, or the employer, or its 
employees, has created the violation or assumed responsibility for 
ensuring compliance by other employers on the worksite. I urge my 
colleagues to join me in support of this legislation.

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