Who is responsible?

[RCP]

Is a contractor responsible for a sub’s fatal wrongdoing or mistakes?

Yes, says the Occupational Safety and Health Administration, which has slapped a Pennsylvania construction company with three willful citations and $168,000 in fines in the death of an independent contractor.



More here.... (http://www.paintsquare.com/news/?fuseaction=view&id=5789&nl_versionid=1017)

[bconley]

It wouldn't matter if the they were employees or subs, the contractor is always responsible under contract law

[afkama]

Eclipse, however, filed notice June 10 with OSHA that it would contest the case, contending that it was not an excavation contractor and thus not liable for those activities.
Shami told the York Daily Record that he had hired Raber to work on the drain and was "letting them do their job."
"OSHA thinks we should have told them how to do their job," Shami said. "The normal order of business is to sign a contract and let them work."


I don't see how they will get very far with this. Like BC says by definition the Prime Contractor has overall responsibility for a project. There is a ton of legal precedent in this regard.

I know a lot of contractors think they can lay their risk and exposure off on their subs but they really can't. Especially with OSHA. The prime contractor is responsible for verifying that all subs are complying with proper safety programs and even that they have an in house safety program and training.

[Greg from K/W]

I agree Afkama that would not fly in Ontario Either. THe contractor still has to know the scope of work and safe work practice up here. He also has to have a written work procedure in his hand before the work starts. Then if he sees any deviation from that he can interrupt and ask what is going on. If he doesn't have that then Ministry of Labour can climb up their rear end. If he does and the contractor doesn't follow it then the onus in on the sub trade. That guys argument will not fly any where in North America and he is an idiot if he thinks it will.

[bconley]

He might have a chance if he had a all his ducks in a row and the sub contractor blatantly did not follow the safety rules.
The courts would weigh the extent of control over the work being performed to see who see who was more at fault, and more than likely both companies would be found liable

[afkama]

He might have a chance if he had a all his ducks in a row and the sub contractor blatantly did not follow the safety rules.
The courts would weigh the extent of control over the work being performed to see who see who was more at fault, and more than likely both companies would be found liable

He probably blew his chance at that defense:


Shami told the York Daily Record that he had hired Raber to work on the drain and was "letting them do their job."
"OSHA thinks we should have told them how to do their job," Shami said. "The normal order of business is to sign a contract and let them work."

I'm guessing his lawyer is tearing his hair out right about now and telling him to STFU.

[Greg from K/W]

No doubt about that at all. Surprised his lawyer didn't shoot his ass right then and there.

[Mike(VA)]

I have had my attorney tell me that if I tell my subs how to do their jobs, then they could be classified as my employees since I exercise control over their work. Not just for that reason alone, of course, but it contributes heavily. It seems no matter what we do, we will get hit.

[Mike(VA)]

I am getting very close to the point of spelling out exactly WHAT I want done by a sub, even clean up at the days end, but nothing about HOW they should do it.

[afkama]

I have had my attorney tell me that if I tell my subs how to do their jobs, then they could be classified as my employees since I exercise control over their work. Not just for that reason alone, of course, but it contributes heavily. It seems no matter what we do, we will get hit.

Well that isn't quite right and I would ask him for clarification.
If you tell a sub that they have to be on the job between the hours of 8 to 4:30, use employee X to do a certain task etc then sure, the IRS would be inclined to argue the classification.

On the other hand, if a sub creates an unsafe condition and you tell them to rectify it, the IRS is not going to view the sub as an employee.

if you allow the condition to continue, OSHA will hold you negligent and the same would be true in a civil action.

[Mike(VA)]

Yes, I agree with your comments. What I meant, and I think he meant, was that I cannot tell him HOW to do his job. Not how to paint something, cut something, a certain technique that he should use. If he is truly an IC, then he should have the knowledge and skills to do the job he is contracted to do. I know I can tell him parameters of the job such as available times to work, quality expected, etc, but I can't tell him he has to be there the whole time.

Unfortunately, my experience with all this is far inferior to many of you so I tend to rely on others' input. I need to learn more.

[afkama]

Yes, I agree with your comments. What I meant, and I think he meant, was that I cannot tell him HOW to do his job. Not how to paint something, cut something, a certain technique that he should use. If he is truly an IC, then he should have the knowledge and skills to do the job he is contracted to do. I know I can tell him parameters of the job such as available times to work, quality expected, etc, but I can't tell him he has to be there the whole time.

Unfortunately, my experience with all this is far inferior to many of you so I tend to rely on others' input. I need to learn more.

From what I've seen the IRS doesn't get real technical about this unless you are obviously trying to game the system. Our industry has been notorious for this. Some contractors will require all their guys to get their license and then 1099 them even though they are clearly operating as employees. From what I've seen the main red flag for them is whether that sub has any other sources of income or whether they do all their contracting with one particular contractor. If that is the case they might want to look closer at that relationship.

The other interested party is workers comp. If you are classifying your employees as subs and they go exempt in order to avoid comp premiums then they will take an interest as well.