Michael Karl McNeil

On a construction site the hazard belongs to whoever built it, whoever is standing in it, whoever could fix it, and whoever runs the job. That is why one unguarded opening can generate more than one citation.

The four roles

• The creating employer, whose work produced the hazard
• The exposing employer, whose employees are exposed to it
• The correcting employer, engaged to fix or maintain that kind of condition
• The controlling employer, with general supervisory authority over the site, including the authority to require correction

A single employer can occupy more than one role at once, and a general contractor is routinely both controlling and exposing. The analysis is applied to the facts of the day, not to the contract.

What defends a controlling employer

Reasonable care, evidenced. That means a documented inspection frequency proportionate to the risk of the work in progress, a record of hazards found, a record of who was told and when, and a record of the escalation when a subcontractor did not fix it. The escalation record is the one that is almost always missing. A superintendent who says he told the framer three times, with nothing in writing, has told nobody.

What defends an exposing employer

Either that the employees were not in fact exposed, or that the employer did not know and could not reasonably have known, or that it took the protective steps available to it — which on someone else’s hazard usually means removing its people, notifying the controlling employer, and documenting both.

The practical part

Contract indemnity does not move a citation. Cal/OSHA cites employers, not risk allocations, and a hold-harmless clause has no effect on the classification of a violation or on the penalty. What actually reduces exposure on a multi-employer job is unglamorous: a daily walk with a written finding sheet, a named person on each trade who receives it, and a habit of writing down the second and third request.

I have reviewed a good many of these files after the fact, both for citation defense and as an expert in injury litigation. The employers who come out of it well are not the ones with the thickest safety manual. They are the ones who can produce, six months later, the note that says who was told and what happened next.

Michael Karl McNeil. General information, not legal advice.