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JUDICIAL UPDATES Primary Employer Was Properly Cited by Cal-OSHA for Failing to Provide for Safety of Employee Leased to Secondary Employer In Sully-Miller Contracting Company v. California Occupational Safety & Health Appeals Board, the Department of Industrial Relations, Division of Occupational Safety and Health (“Cal-OSHA”) cited Sully-Miller Contracting (the “Employer” or “Sully-Miller”) for violations of the safety provisions in Title 8 of the California Code of Regulations. This followed an incident in which Jeff Moreno (the “Employee” or “Moreno”), a long-time employee, was fatally injured while working as a leased employee for another company, Manhole Adjusting, Inc. The accident occurred when the Employee was thrown off the asphalt roller machine – without a working seat belt – that he was operating. The Cal-OSHA citation alleged that the Employer failed to have an injury prevention program in which it instructed the Employee to refuse to work at the secondary site until he was given an asphalt roller with an operative seat belt. In addition, the citation alleged that the Employer failed to conduct periodic monitoring of the manhole site to determine compliance with its program. On appeal, the Employer contended: (1) there was no legal basis for a dual-employer theory of responsibility; (2) Moreno was not its employee when he was fatally injured, (3) Labor Code section 6401.7, subdivision (h) eliminated the primary employer’s obligation to provide safety training to an employee who works under the direct supervision of another employer; and (4) there was insufficient evidence to support the finding that the Employer’s injury prevention program did not satisfy the regulations. The Court of Appeal found that there was substantial evidence to support the finding that the Employer was a primary employer for purposes of Labor Code § 6401.7, subdivision (a), even though the Employee was without work and was not receiving an hourly wage from the Employer when the lease agreement was made. The employment relationship between Moreno, Sully-Miller, and Manhole was one of dual employment, in which Sully-Miller was Moreno’s primary employer. Moreno met the definition of an employee in Labor Code § 6304.1, subdivision (a), because he was under Sully-Miller’s direction. Labor Code § 6401.7, subdivision (h), did not relieve Sully-Miller of its responsibilities for providing general safety training when it leased the Employee to a secondary employer. Sully-Miller, as a primary employer of Moreno, was required by Section 6401.7 to establish, implement and maintain an effective injury prevention program for employees leased to a secondary employer. The program must include training applicable to the work for which the employee is leased and the monitoring of the secondary employer to ensure that the safety program is implemented. In this case, Moreno should have been instructed by Sully-Miller to refuse to operate a roller for Manhole without an operable seat belt. NEXT: Ninth Circuit Upholds Appearance and Grooming Standards as Nondiscriminatory
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