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When IC status is not a shield from OSHA

Independent contractor compliance is a complex issue, with government agencies applying different tests to determine proper classification. One consistent thread is the level of control the hiring entity has or exerts over the worker.

A recent case in Maine highlights an angle of the issue not usually covered — but which has the most serious of consequences: Ensuring safety protocol compliance.

Worker’s death. Purvis Home Improvement, owned by Saco, Maine-based Shawn D. Purvis, employs independent contractors. In December 2018, Alan D. Loignon II, one of Purvis’ contractors and Purvis’ half-brother, died after falling off a roof at a Portland, Maine, job site. Loignon was not wearing a safety harness, according to reports.

Earlier this month, the US Department of Labor’s Occupational Safety and Health Administration found that Purvis knowingly failed to ensure the use of fall protection by workers at the Portland worksite as well as a separate worksite in Old Orchard Beach, Maine. Purvis faces a total of $1,792,726 in penalties for egregious willful, repeat and serious workplace safety violations. OSHA has cited Purvis for seven violations since 2006.

In April, a Portland grand jury indicted Purvis for manslaughter [1] and workplace manslaughter, charging that repeated violations of OSHA’s fall protection standards caused Loignon’s death.

Control. Because control is a factor that is weighted heavily in independent contractor classification cases, companies are hesitant to exert control over their contractors. And that is a line of defense Purvis’ attorney looks to be following, according to the Portland Press Herald [2]. Thomas Hallett, Purvis’ attorney, said in an email to the newspaper: “Because Purvis Home Improvement cannot exercise control over how independent contractors do their jobs, it cannot mandate safety protocols,” noting that Purvis does make available safety equipment at all times.

When it comes to workplace safety, though, and the agency that enforces it, independent contractor status does not absolve companies of responsibility.

“Effective fall protection can prevent tragedies like this when an employer ensures the proper use of legally required lifesaving protection,” said OSHA Area Director David McGuan, in Augusta, Maine. “An ongoing refusal to follow the law exposes other employees to potentially fatal or disabling injuries. Employers cannot evade their responsibility to ensure a safe and healthful worksite.”

Developing law. Charles Palmer, a partner with Michael Best and Friedrich LLP, notes companies often say they don’t want to dictate the activities of their contractors because that may destroy independent contractor status. “However, the developing body of law, especially in the case of the individual contractor, suggests that companies that use [independent contractor labor] as part of their product or service provided to their customers have a duty to assure compliance with OSHA requirements,” said Palmer, who leads Michael Best’s workplace safety and health sub-practice.

Palmer advises companies to establish some minimum standards. In the case of roofing contractors, for example, the primary mechanism of injury or death is a fall, “so contractors should be following OSHA rules, and those who use contractors should be enforcing those standards,” he noted. If an accounting firm hires an independent contractor to put a roof on its building, it probably will not be liable if the contractor falls, he explained. However, if a construction company engages an independent contractor to perform part of a contract for construction of a building, “the potential for liability is quite different. “Legal principles, including joint employer, statutory employee and the OSHA multi-employer worksite standard,  have eroded the independent contractor defenses that may have existed in the past.”

The bottom line? “Neither OSHA nor a jury are going to see independent contractor status as a shield in these types of cases,” Palmer cautioned. “So companies that use contractors need to set — and enforce — minimum standards specific to their industry.”

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