The truly “self-employed” – has no employees working for him or her and is not an employee – are not subject to the OSH Act (the “Act”). Many people refer to themselves as “self-employed”. However, your idea of self-employment may be contrary to the Occupational Safety and Health Review Commission’s view for purposes of the Act.

A post last month discussed the definition of an “employer” for purposes of the OSH Act. For comparison, I thought it would be worthwhile to discuss a fact scenario illustrating what was held to not constitute an “employer” (i.e., self-employment) for purposes of the Act. Failure to understand the distinction could be costly.

In Davis, 19 O.S.H. Cas. (BNA) ¶ 1477 (O.S.H.R.C. July 30, 2001), the Commission held that Don Davis – a sole proprietor engaged in excavating a trench and installing pipe – was truly self-employed, and, therefore, wasn’t an “employer”. When the inspection occurred, Davis was being assisted by three other men. Despite the presence of the three men, the Commission, after a lengthy, fact-specific discussion, decided that Davis was not an “employer”. Critical to the Commission’s decision was that Davis did not exercise control over the workers. The Commission stated:

Control over the ‘manner and means of accomplishing the work’ must include control over the workers and not just the results of their work. One who cannot hire, discipline, or fire a worker, cannot assign him additional projects, and does not set the worker's pay or work hours cannot be said to control the worker.

Of course, had the Commission found Davis to have exercised sufficient control over any one of the three workers, the result would have been different. Davis would have been deemed an “employer” and, therefore, subject to the penalty.

Each situation would require a very fact-specific inquiry. However, it would behoove those who are unsure of their status, no matter how slight, to comply with the Act.

Alabama attorney and professional engineer Jacob W. Hill practices construction law, representing general contractors, subcontractors, material suppliers, developers, architects, engineers, and other parties to construction and development projects. Contact Jacob Hill for more information or a consultation regarding your project.