In response to a report of a fatality at Respondent’s place of business, Complainant initiated an inspection that concluded with Complainant issuing a four-item Citation and Notification of Penalty. For the most part, the specifics of the alleged violations—which include:
- a failure to train,
- a failure to cover floor holes, and
- a failure to properly guard a chop saw
are not particularly complicated.
The wrinkle in this case is whether the workers identified by the Compliance Safety and Health Officer (CSHO) as being exposed to a hazard were Respondent’s employees.
Respondent stipulated to being a covered employer under the Act but now argues that the exposed workers were independent contractors. Therefore, this dispute is not about whether OSHA has jurisdiction over Respondent, but whether Complainant can prove Respondent had employees that were exposed to the hazard. Whether viewed under the Commission’s application of the Darden factors or the Fifth Circuit’s economic realities test, the Court finds Respondent’s attempts to characterize these workers as anything other than employees are merely a thin veneer designed to give the appearance of a relationship that does not exist in economic reality.
Based on the following findings of fact and conclusions of law, the Court finds the Citation and Notification of Penalty shall be AFFIRMED in part and VACATED in part.