OSHA: Contractors Liable for Conditions in Client’s Facility

OSHA Alabama Employment Law work conditions contractors
OSHA can hold contractors liable for defects in facilities that they do not own.

A recent decision from the Eleventh Circuit Court of Appeals demonstrates that independent contractors should actively communicate with their clients about dangerous work conditions.  See Packers Sanitation Services, Inc. v. Occupational Safety and Health Rev. Comm., No. 19-11537, 2020 WL 115472 (11th Cir. Jan. 10, 2020).  Packers Sanitation Services, Inc. (“Packers”) provides sanitation services to poultry processing facilities.  When a facility closes for the night, Packers employees enter the facility and clean the equipment.  A Packers employee was cleaning a piece of equipment at a Pilgrims Pride facility and suffered a partial amputation of a finger.

OSHA commenced an investigation and investigators met Packers representatives at the Pilgrims Pride facility.  Those representatives agreed that investigators could view the machine that caused the injury.  While walking to the machine, an investigator noticed a series of drains in the floor that lacked adequate covers.  A Packers manager told the investigator “that the drains had been in that condition for at least a year.”  OSHA added an additional citation against Packers for failure to maintain safe walking-working surfaces.

After losing its case before an Administrative Law Judge, Packers appealed to the Eleventh Circuit.  Among other things, it argued that it could not be liable for failure to repair the drains because the drains were owned by Pilgrims Pride.  The Eleventh Circuit rejected that argument, finding that “[t]he fact that Packers does not itself own the drains does not eliminate its responsibility to provide its employees with a safe working place.”

There are two primary lessons for Alabama employers to learn from the Packers decision.  First, take OSHA investigations extremely seriously and vigorously prepare for them.  OSHA investigators are not entitled to engage in a random tour of a workplace.  But, if an employer gives access to any part of a facility, investigators can issue citations for any violations that are in “plain view.”  Additionally, anything that an employees says to an OSHA investigator can be used against the employer.  Hindsight is 20/20.  But, in this case, Packers would have been well-advised to ensure (if possible) that all parts of the facility that an investigator might enter would be in good condition.  Moreover, employees accompanying the inspector should have been instructed to limit all communications.

The second lesson to be learned focuses on the need for communication between contractors and their clients.  Potentially, Packers may have been reluctant to point out safety violations to its client, Pilgrims Pride.  Nevertheless, the Eleventh Circuit’s decision makes clear that a contractor can be liable for unsafe work conditions — even if the contractor does not own the facility where the conditions occur.  Again, in hindsight, Packers should have communicated with Pilgrims Pride about rectifying the defective drains.

Defense Contractor Whistleblower Protection Act Could Impact Alabama Employers

Defense Contractor Whistleblower Protection Act Alabama Employment Law
The Defense Contractor Whistleblower Protection Act could impact many employers in Alabama.

Alabama employers need to know about the Defense Contractor Whistleblower Protection Act, 10 U.S.C. § 2409.  Off the top of my head, I can identify major military bases at Redstone Arsenal, Maxwell Air Force Base and Fort Rucker.  Private defense contractors will be an integral part of each such base.  Moreover, many of my defense contractor clients based in Huntsville have employees outside Alabama.  Thus, they need to be aware of this Act.

In short, the Whistleblower Protection Act protects employees from retaliation if they make complaints about violations related to Department of Defense or NASA contracts, or dangers to public safety.  More particularly, the Act provides:

(1)An employee of a contractor, subcontractor, grantee, or subgrantee or personal services contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body described in paragraph (2) information that the employee reasonably believes is evidence of the following:

(A) Gross mismanagement of a Department of Defense contract or grant, a gross waste of Department funds, an abuse of authority relating to a Department contract or grant, or a violation of law, rule, or regulation related to a Department contract (including the competition for or negotiation of a contract) or grant.

(B) Gross mismanagement of a National Aeronautics and Space Administration contract or grant, a gross waste of Administration funds, an abuse of authority relating to an Administration contract or grant, or a violation of law, rule, or regulation related to an Administration contract (including the competition for or negotiation of a contract) or grant.

(C) A substantial and specific danger to public health or safety.

10 U.S.C. § 2409(a)(1).  The list of persons/entities to whom an employee can complain is extensive.  See 10 U.S.c. § 2409(a)(2).  Most importantly, employees are protected if they make an internal company complaint to a “management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.”
There have only been a handful of trial court cased dealing with the Whistleblower Protection Act.   Even so, one of those case was issued by Judge Abdul Kallon in the Northern District of Alabama late last year.  See Devillo v. Vision Centric, Inc., No. 5:15-cv-02211-AKK, 2017 WL 3425465 (N.D. Ala. Aug. 9, 2017).
For any lawyers reading this, there is a slight divergence of authority on the proper method for analyzing Whistleblower Protection Act claims.  Judge Kallon followed the lead of other District Court judges and applied the traditional burden-shifting scheme for retaliation claims arising under Title VII of the Civil Rights Act.  But, recently, Magistrate Judge Michael Hegarty in Colorado found that the Whistleblower Protection Act contained a statutorily-mandated analysis, which he summarized as follows:
[An employee] will succeed on his claim for retaliation in violation of 10 U.S.C. § 2409 if he demonstrates (1) he engaged in protected activity as described in the statute, (2) the [employer’s] decision maker knew he engaged in protected activity, and (3) his protected activity was a contributing factor in the adverse employment action taken against him, unless (4) [the employer] shows by clear and convincing evidence that it would have taken the employment action despite [the employee’s] protected activity.
Cejka v. Vectrus Sys. Corp., No. 15–cv–02418–MEH, 2018 WL 879522 at *14 (D. Col. Feb. 14, 2018).