On August 31, 2018, the Department of Labor & Industries, Division of Occupational Safety and Health (“DOSH”), issued an updated Directive to clarify enforcement guidelines regarding Stute citations for upper-tier contractors. Contractors need to be aware of the new DOSH Directive because L&I compliance officers may issue more citations than in the past.
In Stute v. PBMC, the Washington State Supreme Court determined general contractors are responsible for WISHA violations by subcontractors. The court explained that general contractors have a “non-delegable duty” to ensure their projects are safe. In practice, this means that general contractors are responsible not only for their own employees, but for everyone working on the jobsite. The court reasoned that because general contractors have “per se control over the workplace,” they are “in the best position to ensure compliance with safety regulations.” Since the 1990 Stute decision, various court decisions expanded Stute liability. Today, upper-tier subcontractors and owner/developers can also be cited for WISHA violations by lower-tier subcontractors.
Defense – “Unpreventable Employee Misconduct”:
The most common defense to a Stute citation is establishing “unpreventable employee misconduct.” Washington law provides that an employer is not liable for employee misconduct if it can show:
- A thorough safety program, including work rules, training, and equipment designed to prevent the violation;
- Adequate communication of these rules to employees;
- Steps to discover and correct violations of its safety rules; and
- Effective enforcement of its safety program as written in practice and not just in theory.
Establishing this defense can be difficult. Compliance officers have broad discretion in determining whether a contractor has met the defense elements outlined above.
How to Foster a Safe Workplace & Protect Your Company:
The prior DOSH Directive (previously updated in 2016), states “if there is a serious violation by a lower-tier contractor,” a parallel violation to an upper-tier contractor “may be appropriate.” The updated guidelines indicate that if there is a serious WISHA violation by a lower-tier contractor, a direct Stute citation to an upper-tier contractor “must be evaluated.” The Directive also provides that “if it appears that the lower-tier contractor will be able to successfully assert an affirmative defense such as unpreventable employee misconduct or any other recognized affirmative defense, then no violation should be issued to either the upper-tier or lower-tier contractor.”
Contractors should take the following steps to protect workers and (hopefully) avoid Stute citations:
- Require written site-specific accident prevention plans from each of your subcontractors.
- Outline written job-specific hazards and require subcontractors to provide a list of “competent persons” with the proper training.
- ENFORCE the safety policies you develop and conduct regular audits to ensure compliance.
- Keep records concerning the safety plan, training, and enforcement.
- Ensure that your subcontracts require subcontractors to supply all safety equipment necessary to perform their scope of work and require indemnity for liability incurred due to safety violations.
The attorneys at Campbell & Bissell are available to answer your questions. We can assist you in updating your contracts and we can provide guidance to better protect your company from Stute citations.
by Tyler Waite
Campbell & Bissell, PLLC