I recently visited a roofing contractor friend in western Pennsylvania. I went to meet him on a commercial renovation job he’d begun along the shopping strip in town. The building had been gutted, and interior framing had begun. Windows and doors were yet to be installed. The site was full of demolition piles, debris was scattered everywhere, and the roll-off was overflowing. There was no controlled access zone or construction signs evident.
As I drove through the parking lot around the 16-foot-high, single-story masonry building, I noticed his two-man roofing crew was unloading materials from a supplier’s flatbed onto the flat, membrane roof. Both roofers were wearing shorts, sneakers and full-body harnesses that were visibly damaged. One had his harness shoulder straps stripped down to his waist, while the other had only one leg rigged into his harness. Neither roofer wore a lanyard nor established a suitable anchorage. There was a sagging and incomplete warning-line system around less than half of the roof edge. A damaged aluminum extension ladder provided access from the parking lot to the roof. One roofer reached over the drip edge to grab materials from the other man below. No hard hats were evident.
There are two categories of worksites I regularly experience: those on which I feel comfortable, and those on which I do not. This was decidedly the latter. The hairs on my neck were standing as I was approaching one of those dead-quiet, slow-motion moments where accidents likely occur.
I could smell trouble.
As my friend and I drank our early-morning coffee, I asked him, “Are those your employees up on the roof?”
“Nah,” he replied. “I only subcontract them. They’re not my problem.” The Commonwealth of Pennsylvania considers them independent contractors.”
There I was at the familiar crossroad where I often find myself. Decision time: open my mouth, or keep it closed.
As my career in the construction-safety industry enters its third decade, I realize that line to be crossed or not can be found practically everywhere I go. Casual safety commentary is easily deflected, while any attempt to educate is always repulsed. During our conversation over coffee, my friend mentioned that there wasn’t a written subcontractors agreement, but rather time and material on a handshake. I realized that although their hand tools were their own, he had purchased all of their roofing materials and given daily directions to his roofing “subcontractors,” thereby voiding their “independent” status and meeting OSHA’s minimum criteria for a “controlling employer.”
From an expert witness’ viewpoint at trial, I knew the outcome of a potential fall accident involving these subcontractors would uncover more liability than he would admit to over coffee that morning. Although I was neither invited nor hired to comment on my friend’s business practices, my decision was made. I spoke: “On both moral and legal grounds, I believe those are your employees, and you have a general duty under the OSH Act to protect them.”
His ensuing groan and eye-roll spoke volumes before he replied, with a grin, “Not if they don’t fall.”
Clearly, the coffee break was over.
I often refer to safety in class as “an expensive non-event.” In other words, the sum investment for all of the training, equipment and manpower required to achieve zero accidents can amount to a considerable amount of money. Whether this money is listed as overhead or deducted from profits, it must first be generated through a competitive bidding process. If my friend had subcontracted an adequately safety-trained and equipped roofing firm for his project, his labor estimate would have reflected their higher billing rate for either lump-sum or T&M services. Their labor, material and equipment costs generated by OSHA compliance would obviously be higher than another competitive firm that wasn’t equally committed to OTJ safety. A 2000 study by Dupont Chemical of their subcontractors’ bids nationwide put this differential at approximately 8-12 percent of the total bid, depending on a job’s gross costs.
Hiring an OSHA-compliant roofing subcontractor may have raised my friend’s overall project bid, thus possibly causing him to lose the award. Some argue that work here in the Northeast isn’t so plentiful that risking unemployment for safety ethics is a practical business decision. However, all of these arguments end abruptly on the day of an accident, as no project budget can afford a fatality.