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November 2025 |  Issue 7

Rethinking OSHA’s Multi-Employer Site Doctrine

On most construction projects, more than one company works on the same jobsite. Under OSHA’s multi-employer site doctrine, the agency can issue safety citations not only to the company whose employee was exposed to a hazard, but also to other employers on the site who had the ability to create, control, correct, or discover the hazard. In practice, this means a general contractor can be cited even when its own workers were not involved and even when a subcontractor created the unsafe condition.

While the policy was originally meant to ensure accountability, its application has become inconsistent and confusing. Contractors often face citations for conditions they neither caused nor could reasonably prevent, creating uncertainty, higher compliance costs, and unnecessary tension among project participants.

As the author of the National Construction Policy Institute’s (NCPI) new white paper, Rethinking OSHA’s Multi-Employer Citation Doctrine, I examine how this enforcement approach has evolved and why it needs reform. The paper traces the doctrine’s history through court and agency decisions, outlines how uneven enforcement distorts contractor relationships and insurance costs, and presents a detailed framework for aligning responsibility with actual control on the jobsite.

The NCPI proposal focuses on common-sense reforms that maintain safety while providing legal clarity. Key recommendations include:

• Safe-harbor protections allowing general contractors to provide training, PPE, and safety technologies to subcontractors without automatically becoming “controlling employers.”

• Graduated citation levels based on an employer’s true ability to identify and correct hazards rather than mere jobsite presence.

• Data-driven safety partnerships that reward documented cooperation and continuous improvement instead of reactive punishment.

The NCPI paper also proposes both near-term OSHA rulemaking under Part 1926 and long-term legislative action to codify fair enforcement standards, harmonize state-plan programs, and embed due-process protections.

The goal is straightforward: promote safety through collaboration, not confusion. By aligning accountability with actual control, contractors can focus on preventing injuries instead of defending against arbitrary citations.

 Read the full white paper here: https://constructionpolicyinstitute.org/resources

About NCPI:

The National Construction Policy Institute (NCPI) is a non-partisan think tank advancing research-based policies that strengthen safety, compliance, and efficiency in the construction industry. Learn more at www.constructionpolicyinstitute.org.

Case Law Update

Scope and Responsibility: Illinois Court Clarifies Contractor Liability in Project Coordination

In Barnes Electric Construction, Inc. v. Forsythe, 2025 IL App (2d) 240479-U (Oct. 2025), an electrical contractor sued a homeowner and her trust for payment following completion of work. The contractor asserted claims for breach of contract, foreclosure of a mechanics lien, and quantum meruit. The trial court rejected the contract and lien claims but awarded recovery under quantum meruit, recognizing the contractor’s right to be compensated for the reasonable value of its services. On appeal, the Second District affirmed, holding that the contractor’s quantum meruit award was supported by the evidence and not against the manifest weight of the record. The court further upheld the denial of attorney’s fees to the homeowner, finding the contractor had a reasonable basis to assert its lien claim.

 Takeaway: Barnes Electric Construction, Inc. v. Forsythe, 2025 IL App (2d) 240479-U, reinforces that contractors may still recover the value of their work through quantum meruit when a formal contract or mechanics lien claim fails, but success depends on detailed proof of labor and materials furnished. The decision also cautions that lien rights require strict procedural compliance and that appellate courts will uphold fee denials when the contractor’s filing, though unsuccessful, is grounded in good faith. For contractors, the case underscores the importance of meticulous documentation, timely lien filings, and preserving all potential recovery avenues when payment disputes arise.

Independent I-9 Verification and Audits

I-9 Compliance: Why Audits and Third-Party Verification Matter

In today’s enforcement climate, even minor errors on Form I-9 can trigger significant fines, penalties, and unwanted scrutiny from DHS or ICE. Routine internal audits and third-party verification provide an essential safeguard ensuring that your employment eligibility documentation is accurate, consistent, and defensible if questioned. Independent reviews not only identify compliance gaps but also demonstrate good-faith efforts to follow federal law, a key factor in mitigating potential liability.

Need I-9 Verification Support?

If your company wants to ensure compliance and obtain an independent, third-party verification of its I-9 forms, please contact me directly for additional information.

Context:

From time to time, contractors may be drawn into third-party legal or administrative matters involving a project even when they are not parties to the dispute. Such participation, whether through subpoenas, depositions, or document requests, can impose significant time and cost burdens unrelated to the Contractor’s performance under this Agreement. To ensure fairness and allocate those costs appropriately, the following provision establishes the Customer’s obligation to reimburse the Contractor for expenses incurred in responding to or assisting with third-party proceedings. Recognize, the provision may still be subject to challenge, but it at least gives you a colorable argument to recover out-of-pocket costs.

Sample provision:

If the Contractor is required to respond to or participate in any subpoena, deposition, discovery request, or other legal or administrative proceeding arising out of or relating to the Project or the Work, but not initiated by or against the Contractor, the Customer shall promptly reimburse the Contractor for all reasonable costs, attorney’s fees, and related expenses incurred in connection therewith, including reasonable compensation for the Contractor’s personnel time spent preparing for and attending any such proceeding. This reimbursement obligation shall not apply to the extent the proceeding arises from or relates to the Contractor’s own breach of this Agreement, negligence, or willful misconduct. This provision shall survive the termination of this Agreement.

Reading the Fine Print: What to Look for in Roofing Applicator Agreements

Manufacturer applicator agreements often appear to be routine warranty paperwork, but they are binding legal instruments that shift substantial risk to the contractor. These agreements define the conditions under which a roofing contractor may install, register, and warrant a manufacturer’s system and they can expose even experienced firms to unexpected liability if not reviewed carefully. Each provision should be analyzed as if it were part of a project contract.

1. Scope, System, and Authorization

Applicator agreements frequently restrict authority to certain systems, regions, or installation methods. A mismatch between the manufacturer’s defined “approved scope” and the contractor’s actual work can invalidate warranty rights. Contractors should confirm that the agreement covers all intended systems, accessories, and geographic areas, and that equivalent materials may be substituted with written manufacturer approval. Clarify whether subcontractors under your supervision may perform portions of the work without jeopardizing certification.

2. Pre-Job Submittals and Technical Services

Many programs require pre-installation submittals such as pull-out tests, uplift calculations, or shop drawings. Contractors should inform the customer and document that the manufacturer’s review or field-service comments are advisory only and do not transfer design responsibility to the applicator. Specify reasonable turnaround times for technical reviews to prevent project delay.

3. Warranty and Indemnity Obligations

Standard forms often impose broad indemnity and defense obligations that extend well beyond workmanship issues. Contractors should narrow indemnity to losses “to the extent caused by” their own acts or omissions and ensure reciprocal protection where defects arise from manufacturer-supplied materials, details, or directives. To prevent early duty-to-defend exposure specify that any defense obligation applies only to proven installation error and terminates upon a finding of no fault.

4. Inspection, Rejection, and Cure Rights

Manufacturers typically reserve sweeping authority to inspect or reject work. Add objective criteria by requiring that any rejection cite a published installation standard and that written notice and a reasonable cure period, such as ten business days, be provided before suspension or revocation of status. This ensures fairness for in-progress projects and protects certification continuity.

5. Warranty Claim Mechanics

Warranty language should specify owner notice periods, emergency response timelines, and cost responsibility for non-covered service calls. Clarify that any remedial work performed at the manufacturer’s direction does not waive the contractor’s rights or create admission of liability. Contractors should also ensure warranty registration procedures, transfer fees, and maintenance obligations are clearly defined to avoid later disputes.

6. Data, Photos, and Intellectual Property

Most applicator programs now require photo documentation or digital uploads. Limit the manufacturer’s right to reuse those materials. A best-practice clause grants the manufacturer a non-exclusive, limited license to use submittal data solely for quality control and warranty administration. Any marketing or training use should require separate written consent with appropriate attribution.

7. Termination, Renewal, and Volume Requirements

Some manufacturers tie certification renewal to purchase volume or annual revenue thresholds. Request cure provisions for shortfalls, realistic sales targets, and language prohibiting retroactive decertification affecting completed projects. Contractors should also secure the right to complete any jobs already approved under the prior term.

8. Venue, Arbitration, and Fee Allocation

Because manufacturers often designate their home state or a costly arbitral forum, contractors should negotiate a neutral venue or a home-state forum for smaller disputes. Include a small-claims carve-out and prevailing-party fee language to discourage overreach. Where arbitration is mandatory, require shared costs and a construction-experienced neutral.

9. Flow-Downs and Multi-Employer Coordination

On multi-employer sites, contractors should confirm that manufacturer warranties remain valid when qualified subcontractors perform installation under supervision. Align the manufacturer’s approved installer rules with real-world site dynamics to prevent unintentional voiding of coverage.

10. Product Liability and Owner Maintenance

Ensure that the agreement does not waive statutory indemnity rights under state “innocent seller” laws and that manufacturer responsibility for defective materials remains intact. The warranty packet should clearly state owner maintenance and third-party damage exclusions to avoid post-completion disputes over leaks caused by other trades.

 Takeaway: Applicator agreements define the practical and legal boundaries between contractor performance and manufacturer warranty obligations. Before signing, roofing contractors should:

• Review all terms with counsel experienced in construction and product liability law.

• Narrow indemnity and defense language to proven fault.

• Add clear cure rights, data-use limits, and venue protections.

• Preserve reciprocal obligations for manufacturer-directed design or materials failures.

Upcoming Speaking Engagements & Events

• IRCA Conference and Expo, (New Date), State of the Industry, December 3, 2025, Indianapolis, IN

• Best of Success, December 3-5, 2025, On the Roof- Legal Issues Every Contractor Faces, Arlington, TX