July 5, 2007

OSHRC Invalidates OSHA’s “Controlling Employer” Liability Under Multiemployer Worksite Doctrine

Holland & Knight Alert
Howard Sokol


OSHRC Invalidates OSHA’s “Controlling Employer” Liability Under Multiemployer Worksite Doctrine

In Secretary of Labor v. Summit Contractors, Inc., the Occupational Safety and Health Review Commission (OSHRC) refused to enforce a citation issued by the Occupational Safety and Health Administration (OSHA) against a general contractor on a construction site for a violation committed by one of his subcontractors. In a split decision, OSHRC held that OSHA’s application and enforcement of its long-standing policy covering multiemployer worksites must be revised to conform to the OSH Act’s requirement that employers are responsible for providing safe and healthy workplaces for their employees. According to the OSHRC, OSHA no longer has the authority to issue a citation to the general contractor solely on the basis of its being a “controlling employer” if the general contractor (i) did not create the hazard and (ii) does not have any of its employees exposed to the hazard.

State Developments

New Jersey Joins Ranks Protecting Gender Identity and Expression

Effective June 17, 2007, New Jersey’s Law Against Discrimination added “gender identity and expression” as a new protected category. The law defines the protected group as individuals “having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person’s assigned sex at birth.” The intention is to provide employment discrimination protection to transgendered individuals, including pre- and post-operative transsexuals, transvestites and androgynous individuals. The new protection differs from sex discrimination in that gender identity focuses more on the core identification of a person’s gender – whether exhibited through image or physical presentation, or through behavior or expression – regardless of one’s sex at birth. New Jersey joins a number of other states that provide some form of protection to employees from discrimination based upon gender identity or expression, including California, District of Columbia, Illinois, Iowa, Maine, Minnesota, New Mexico, Rhode Island, Vermont, and Washington. In addition, several states have similar legislation scheduled to take effect in the near future: Colorado (8/3/07) and Oregon (1/1/08). Moreover, some states, like New York and Massachusetts, have provided some protection through interpretation of their anti-discrimination statutes. The protection varies depending upon the jurisdiction.

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