“Leave” is probably not a common phrase on a work site unless you’re firing someone, and even then, hopefully it’s not that common. “Do not enter” is also similarly infrequent. However, a general contractor is responsible for his/her work site, even if the actual labor is being performed by subcontractors. Hence, under OSHA standards, said general contractor is called the “controlling employer” meaning technically in control and responsible over a work site. (Stay tuned for more on the controlling versus exposing employer dichotomy – it’s important to understand your classification because it, in turn, impacts your reporting and other duties per OSHA).
A couple of ways to secure one’s site come to mind: first, the concept of deterring members of the public from entering, tripping, and getting hurt. This is usually accomplished with cones, caution tape, and signage. Maybe there’s a yard sign equivalent that says, “This is a construction site. Do not enter.” Then, if someone does get hurt, and sues you, you have taken reasonable steps to advise of a potential hazard and secure your site.
The other securing is more nuanced and pertains to laborers. There are workers who are perhaps second or third tier subcontractors on a project who bring buddies to make a buck and help out. The project may be behind schedule, so the more the merrier… right?
The answer is no. While you may not know the person, haven’t hired them, are not directing their work, and are not paying them, you can still be sued by them. Wait… how?
Whether the general contractor (aka prime contractor) or a subcontractor (aka remote contractor), you have obligations to secure your site, and you have a practical interest in doing so as well. If someone comes on the site as added labor or otherwise, but you’re not sure who brought him/her and what that person is doing at the site, ask questions. Their presence can cause you problems, create a hazard that otherwise didn’t exist, and potentially allow liability to creep into the equation. You want to ensure all persons at a work site are invited to be there, authorized, and trained on the trade at hand and site-specific scope of work (and safety plan).
If unsure, or if you don’t recognize the person as having been there for the days or weeks the project has been in progress, find out to which company or person said person belongs. In the world of subcontracting, and when a project is behind schedule, helping hands may show up from different places (perhaps from a labor broker of sorts), but you have an obligation to ensure qualified, trained individuals are on your work site. If someone is randomly brought to the site for added labor, they likely will not be covered under your insurance policy in the event something happens (i.e. an injury) or an issue exists with their workmanship. In addition, that person hasn’t undergone your training or toolbox talks, which means they have missed vital information and your rules for the project and safety.
A few key projects stand out over the years whereby additional labor was needed, and a guy brought a guy who brought another guy, and before you know it, there are people on site who didn’t make the latest safety huddle, and an incident occurs involving an injury.
In a court of law and per OSHA regulations, the GC cannot throw his hands in the air and claim the injured person was “not my guy.” In reality, as the controlling employer (GC) or even as the exposing employer (subcontractor), both can be on the hook with civil liability and in the regulatory realm with OSHA. Oh, and insurance likely won’t kick in either, so if you’re relying on your general liability policy to swoop in, it may not.
Please reflect on the following:
What steps do you take to secure your site from the public? From uninvited persons?
What conversations do you have with your subcontractors regarding added labor?
Do you have a process in place for training or ensuring said labor is trained?
Does your subcontractor know that if he brings additional labor, that those people must go through certain training – generally and work site specific – before starting work?
Does your subcontract agreement protect you in the event a random person is brought on by a subcontractor to “help?”
Without divulging details, real situations guide these proactive measures. If the question is being asked, “Is this person (fill in the name) your guy?”, then it’s probably too late, and something has happened. Even worse, if you’ve worked hard to build a successful company, the deep pockets will almost always get sued, even if it’s not your fault. Then, it’s up to you to defend and explain to a judge or OSHA inspector the steps you took to secure your site. You’ll have to show, not just tell, what you’ve done.
The easiest documents to implement are:
Master Subcontract Agreement
Site Specific Safety Plan
Proof that the subcontractor participated in and acknowledged training, whether of safety equipment, fall protection, or something else. That means getting their signature.
Closing tip: If you have someone sign a document, have a “Signature” line and a “Print Name” line. In today’s world, signatures have become illegible, so if the whole point is to prove someone received a document and it has a swirly line as a so-called signature, how are you going to prove that person “A” was the person who underwent a training or signed an agreement. Improve your odds by having the two lines.
Now you know; pass it on. All For Contractors is All For You!
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