from Ted Schwartz, Safety Manager, WWW.HRIDEAS.COM
On Aug. 22, 2011, the California Supreme Court held that, when an employee of an independent contractor is injured due to the failure of the independent contractor to comply with workplace safety requirements, liability for the injury is with the employee's employer, not the entity engaging the services of the contractor.
In this case, US Airways used a conveyor to move luggage at San Francisco International Airport. The airline had responsibility for maintaining the conveyor and ensuring its safety. To fulfill this responsibility, the airline engaged the services of an independent contractor, Lloyd W. Aubry Co. Significantly, the airline neither directed nor had any of its employees participate in Aubry's work.
An employee of Aubry, was injured while inspecting the safety mechanisms on the conveyor. Seabright, which was Aubry's workers' compensation insurance carrier, paid for the employee's injuries, but sued the airline, claiming that the airline caused the injury.
The California Supreme Court reversed the First District's conclusion that the airline had a non-delegable duty to ensure that the conveyor had safety guards and that such failure "affirmatively contributed" to the employee's injury.
Businesses, whether they are independent contractors retained to perform services for another person, or the party engaging the services of an independent contractor, should heed the warnings from this case. It is essential that the division of duties and responsibilities between the entities, both regarding the manner in which work is to be completed and who will (and will not) be directing the employees actually performing the contracted-for services, be clearly delineated.
This decision may also ultimately affect how Cal OSHA enforces their multi-employer worksite provisions.
HRI has developed a "Safety Contract Addendum" to be attached as part of your contract should you be employing Independent Contractors/Subcontractors. This Addendum outlines all the required safety plans and many trainngs required by law that every subcontractor should have in place. Please contact your HRI representative for details.
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Ted Schwartz, Safety Manager, WWW.HRIDEAS.COM, can be reached at Bishop Ranch 2, 2680 Bishop Avenue, Suite 126, San Ramon, CA 94583. Main: 925.556.4404. Fax to email: 925.359.1470