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OSHA general duty clause citation upheld in tow truck driver’s death

Tow truck

An administrative law judge of the Occupational Safety and Health Review Commission upheld a general duty clause citation against an automotive garage and towing service company after a tow truck driver was fatally injured when he was pinned between the bed of a tow truck and an off-loaded vehicle.

The U.S. Occupational Safety and Health Administration inspected Johnstown, Pennsylvania-based Berkebile Auto Service Inc. as a result of the fatal injury and issued a one-item citation and penalty notice on May 5, 2017, to the company for violating the Occupational Safety and Health Act’s general duty clause, according to review commission documents published Thursday. The citation alleged that the tow truck driver was not protected from the crushing hazard in the area between the tow truck and the off-loaded towed vehicle.

The company filed a timely notice of contest, with the key issues in dispute being whether it was an employer under the statute, whether there was a violation of the general duty clause and whether there was unpreventable employee misconduct related to the alleged violation. But the law judge found the company to be an employer within the meaning of the statute, affirmed the general duty clause citation and assessed a $3,803 penalty.

The owner argued that the fatally injured driver leased the tow truck from his company and was not an employee, but the law judge found that the company had “general control over the drivers’ means and manner to accomplish the work,” including through its towing contracts, the tools used for towing services, service call assignments, the non-negotiable rate of a driver’s pay, limits on the use of “leased” tow trucks, the prohibition of driver advertising or self-promotion, and the initial two-week ride-along training of drivers, according to the decision. The owner also negotiated the terms of the towing contracts between BAS and its client companies, each driver’s payment from BAS was based upon the towing rates established in these contracts and the drivers had no input into the fee structure or other contract terms.

“BAS had extensive control over the drivers through its owner Harold Berkebile,” the judge stated. “He provided the primary tools, the towing contracts and was the source of all tow assignments. He exclusively controlled the amount of pay each driver received. This one-sided control by BAS is indicative of an employer-employee relationship.”

The company did not withhold taxes from a driver’s weekly pay, similar to those of an independent contractor relationship. But tax reporting status is not the controlling factor in an analysis under the U.S. Supreme Court’s decision in Nationwide Mut. Ins. Co. v. Darden, which analyzed whether an individual was considered an employee under common law, according to the law judge’s ruling. In this type of analysis, the company’s control over the worker is a “principal guidepost” to determine the existence of an employment relationship.

The law judge also rejected the contention that an agreement signed by the drivers demonstrated that they were independent contractors under a Darden analysis because the terms were not individually negotiated with a driver and only specified there was no employer-employee relationship for the purpose of local, state and federal tax liability.

“The Agreement was a generic, boilerplate, fill-in-the blank form that only varied with the name of the Contractor (driver),” the law judge said. “It does not specify the nature of work agreed to or each party’s responsibility. BAS contends the tow trucks were leased to drivers, yet there is no mention of this in the agreement. Considering all the facets of the relationship between BAS and its drivers, I find the relationship was more akin to that of an employer-employee rather than of a self-employed independent contractor.”

To prove a violation of the general duty clause, the Secretary of Labor must establish four elements: that a condition or activity in the workplace presented a hazard, that the employer or its industry recognized the hazard, that the hazard was causing or likely to cause death or serious physical harm and that a feasible and effective means existed to eliminate or materially reduce the hazard. In this case, the law judge determined that there was a crushing hazard, employees were exposed to the hazard, the hazard was serious and was recognized by BAS and by the industry, and there was a feasible means to abate the hazard.

“BAS did not provide adequate work rules, training, supervision of its employees or take steps to prevent hazardous conditions,” the law judge said. “Overall, the absence of work rules, training and attention to safety shows a lack of reasonable diligence.”

The law judge also rejected the asserted affirmative defense of unpreventable employee misconduct because the company had no established work safety rules, it did not communicate those rules, it took no steps to discover violations of work safety rules, and it made no attempt to enforce safety rules.

The owner and an attorney for the company could not be immediately reached for comment.

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