In Solis v. Summit Contractors, Inc., 558 F.3d 815 (8th Cir. 2009), the Eighth Circuit explained that the multi-employer doctrine has its basis in the specific duty provided in 29 U.S.C. § 654 subsection(a)(2) "to comply with standards for the good of all employees on a multi-employer worksite." Id. at 818.
The court further delineated the evolution of the doctrine and the practice of citing employers for violations committed by other contractors or non-employees, noting that, "as part of OSHA's inception, Congress authorized the Secretary to adopt numerous preexisting federal standards, including those of the Construction Safety Act, as OSHA standards. . . ." Id. at 818.
Thus, the Secretary of Labor promulgated a series of regulations pursuant to that authority and also enacted a Field Operations Manual, wherein it first established "the Secretary's multi-employer worksite policy, a policy that indicates which employers at a multi-employer construction site OSHA could cite for violations." Id. at 819.
The original multi-employer worksite exceptions were "the creating employer and the exposing employer citation polices, but not the controlling employer citation policy." Id.
Although the OSHRC originally construed these policies very narrowly by citing employers for violations of others only when their own employees were exposed to the hazard, the court observed that, by 1975, the Second Circuit and the Seventh Circuit rejected the narrow interpretations, questioning whether an employer of a general contractor needed to be exposed to the violation in order to make a general contractor liable under OSHA. Id. at 820.