In Washington State, general contractor (GC) liability for safety citations has been an ongoing issue. Typically, the Department of Labor & Industries Division of Occupational Safety and Health (DOSH) compliance officers show up to inspect a job site, find violations of the Washington Industrial Safety and Health Act (WISHA), and cite the subcontractor who appears to have broken the rules. The problem arises when the DOSH inspector does not stop with citing the subcontractor, but also cites the GC or upper-tier contractor. These sorts of violations have proven to be a tough pill to swallow—a GC who has a great safety program gets punished for the failures of their subcontractor.
Historically, when citing GCs for the unsafe acts of their subcontractors, DOSH has relied on a prior WISHA Regional Directive (WRD) 27.00 that interpreted GC liability from the seminal case, Stute v. P.B.M.C., Inc.1 DOSH officials were to evaluate the GC’s duty of care to its subcontractors and considered a defense much like unpreventable employee misconduct: a) Was the GC aware of or should have been aware of the violation? b) Did the GC establish safety policies? c) Did the GC adequately communicate its safety policies to the subcontractors? d) Did the GC establish a process to discover and control recognized hazards? e) Did the GC enforce safety policies in a manner that was effective in practice? The language in the prior WRD found the GC duty of care to be lower than the duty of care of the subcontractor.
Subsequent to the Stute decision, the Washington Supreme Court has stated that a GC, upper-tier contractor, or landowner under WISHA liability is “per se liable.”2 As a result, the Department recently updated WRD 27.00 on November 30, 2016. It now notes that when a subcontractor is cited for a serious or greater violation, then a parallel citation against the GC, upper-tier contractor, or landowner will usually be appropriate under the concept of per se liability. The GC is now on notice that it is responsible for every employee on its job site, not just its own employees. The GC is found to be in the best position, financially and structurally, to ensure WISHA compliance. However, the most recent guidance on per se liability suggests that if the subcontractor will be able to successfully assert the defense of unpreventable employee misconduct, then no violation should be issued to either the GC or subcontractor.
What proactive steps should a GC take to protect against liability under the new WRD?3 First, make sure to a) update safety policies to be tailored to the hazards at a particular job site and include the policies as an addendum to the contract with the subcontractor; b) actively communicate the safety policies to the subcontractor and record this in written form; c) supervise and inspect the subcontractor’s work, memorializing the inspection with dated pictures and dated written reports; and d) document corrections and enforcement actions for employee misconduct. Second, it is highly recommended that all agreements between GCs and subcontractors contain a provision requiring the subcontractor to notify the GC of any DOSH inspection and allow the GC to participate in and co-ordinate a response. The GC should require the subcontractor to allow the GC the option to challenge any subcontractor violations and require subcontractor co-operation with same. In this way, even if a subcontractor chooses not to directly defend itself against a WISHA citation, the GC could elect to fight the subcontractor citation and/or allege employee misconduct to protect against a parallel citation.
The law on GC liability has been in flux, and the Department’s new WRD 27.00 puts GCs on notice that they are being held to a higher standard. All cases are fact specific. Employers are encouraged to consult with legal counsel as soon as possible when an inspection occurs to get strategic advice on how to handle inspections and citations. ♣
1114 Wn.2d 454, 788 P.2d 546 (1990)
2 See Kamla v. Space Needle Corp., 147 Wn.2d 114, 122, 52 P.3d 472 (2002).
3 These recommendations do not constitute legal advice, but merely opinions expressed by the writer intended to assist businesses with understanding the law in order to meet or exceed compliance.
Karen Galipeau Forner is the founder and managing member of K-Solutions Law in Bellevue, Washington. Karen represents employers in the areas of workplace safety, workers’ compensation, administrative appeals, and employment law. She is a frequent presenter at continuing legal education seminars and to employer groups. Karen has over 25 years’ experience defending and resolving a wide range of workers’ compensation, WISHA, and employment law matters. Prior to starting K-Solutions Law, Karen worked as senior attorney at a law firm in Seattle and for the Washington State Attorney General’s Office. She was the Program Advisor for the Industrial Insurance and Washington Industrial Safety and Health Act (WISHA) Discrimination Programs for more than 10 years and the Program Advisor for the Workers’ Compensation Sren also litigated complex WISHA, Industrial Insurance, Third Party, and Crime Victims Compensation Act cases. She recently served on the Washington State Bar Association Character and Fitness Board.
