Judge: Two Companies Operated as Single Employer at Worksite Where Employees Were Injured

Three employees at a Wenham, Mass., worksite were performing residential roofing work on a ladder jack scaffold when the wooden plank on which they were standing snapped, causing them to fall 20 feet to the ground. An OSHA investigation found that the wooden plank was not graded for scaffold use and its invoice made clear it was not for scaffold use. Other hazards noted during the OSHA inspection included deficiencies with the scaffold’s components and structure and lack of fall protection for the employees.

OSHA cited A.C. Castle and Provencher as a single employer in April 2015 due to the highly integrated nature of their work operations, including common worksites and common management and supervision. A.C. Castle and Provencher contested their citations and penalties to the Occupational Safety and Health Review Commission.

A.C. Castle contended that, as general contractor, it was not responsible for the safety of the workers on the site, asserting that they were employed by Provencher. A trial was held before Administrative Law Judge Sharon D. Calhoun in June 2016. Judge Calhoun ruled on Feb. 28 that A.C. Castle and Provencher were operating as a single employer at the time of the inspection.

A.C. Castle sought review of the decision, which the commission declined. On April 17, Calhoun's decision became a final order. A.C. Castle has 60 days from the date of that order to seek review in the 1st Circuit Court of Appeals.

The decision cited a number of factors, including A.C. Castle’s checking to ensure that workers were tied off, its responsibility for safety on its worksites, its ability to fire or discipline workers, its directions to Provencher concerning the size of the crew, the presence of A.C. Castle signs and the lack of Provencher signage at worksites and A.C. Castle’s representing that it had no subcontractors when applying for building permits. Judge Calhoun's decision upheld the bulk of the citations and determined that A.C. Castle is responsible for paying $173,500 in penalties. The claims against Provencher were extinguished due to his death in December 2016.

“The judge’s decision, now a final order of the commission, upholds OSHA’s findings that A.C. Castle exercised a degree of control and oversight over Provencher’s operations sufficient to render the two a single employer under the Occupational Safety and Health Act, making them responsible as one entity for their employees’ safety,” said Michael Felsen, regional solicitor of labor for New England.

OSHA's Andover Area Office conducted the original inspection. Senior Trial Attorney James Glickman of the Boston regional solicitor's office litigated the case for OSHA.