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Roofing contractor may fight single-employer ruling, $173,500 fine (Members Only)

A.C. Castle Construction Co., Beverly, Mass., may appeal an administrative ruling that it and its subcontractor, Provencher Home Improvement, Beverly, were operating as a single entity when three workers were injured during a scaffolding accident, according to Bloomberg BNA.

On Oct. 2, 2014, a roofing crew was working on a residence in Wenham, Mass. Before arriving at the job site, supervisor Daryl J. Provencher purchased four spruce planks at a local lumber yard, and the crew used the planks to construct a ladder jack scaffold. Later that day, a plank used for the platform snapped, and the workers, who were not tied off to an anchor point, fell 20 feet to the ground; two suffered serious injuries.

An Occupational Safety and Health Administration (OSHA) inspector observed the site and pointed out to Provencher that the invoice for the planks said they were "not for staging." Based on the inspector's findings, the secretary of labor issued a citation and penalty to A.C. Castle Construction, owned by Brian LeBlanc, and Provencher on the grounds they were operating as a single employer, alleging that "Provencher operates as a de facto foreman for A.C. Castle, and/or is controlled by A.C. Castle to such an extent that A.C. Castle's operations and Provencher's operations are closely interrelated and integrated."

Because Provencher passed away in December 2016, the secretary of labor could not pursue claims against him. However, A.C. Castle Construction faces $173,500 in penalties after Occupational Safety and Health Review Commission Administrative Law Judge Sharon D. Calhoun ruled the company and Provencher Home Improvement had a common worksite, integrated operations and a common management.

Calhoun found Provencher Home Improvement earned 95 percent of its income from A.C. Castle Construction projects in 2015. Provencher also charged A.C. Castle Construction's account at the lumber yard to buy supplies and equipment and repaid the money spent without interest. Additionally, A.C. Castle Construction placed advertisements to help Provencher Home Improvement attract employees and hired and fired some of them, and the only OSHA training Provencher Home Improvement employees received was provided by A.C. Castle Construction.

Calhoun also found A.C. Castle Construction noted on workers' compensation affidavits that it was the only employer of the workers. In addition, LeBlanc scheduled projects and bid on projects because Provencher did not have a business license.

Calhoun affirmed three of the five serious citation items, one willful citation item and one repeat citation for violations of construction standards related to scaffolding. Two citation items were vacated because workers received 10-hour construction courses at LeBlanc's home and A.C. Castle Construction had a safety manual.

Jim Laboe, a shareholder at Orr Reno, PA, in Concord, N.H., and counsel for A.C. Castle Construction, told Bloomberg BNA April 25 that his client did not receive fair notice that it could be cited under the single-employer theory.

"A.C. had been operating as a general contractor since January 2011 and has had multiple subs," Laboe said. "OSHA has inspected six worksites and concluded the sub was the employer. A.C. used the same business model and identical contracts for these jobs."

Laboe said his client likely will appeal the ruling.

"The contractors were not a single employer but separate and distinct," Laboe. "The subcontractor, Provencher, paid workers' wages and held workers' compensation insurance. Given the extent of the violations and penalty, my client will probably file a petition in the U.S. Court of Appeals for the First Circuit."



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