June 28, 2022
Jesse and Matt are members of the firm’s Construction Law Department. Jesse can be reached at 612.359.7637 or email@example.com. Matt can be reached at 612.359.7611 or firstname.lastname@example.org
Construction jobsite safety is of utmost importance. The work of constructing, operating, maintaining, and repairing the buildings, roads, and other structures comprising our built environment often involves risks and hazards that should be evaluated, monitored, and controlled to advance and promote jobsite safety. Each and every laborer and craft person on the job should go home safe and healthy each and every night.
This much should not be controversial. It also fairly describes the purpose of the Occupational Safety and Health Act of 1970 (the OSH Act), as well as the Minnesota Occupational Safety and Health Act of 1973 (the MNOSH Act). The federal Occupational Safety and Health Administration (OSHA) administers and enforces the former, while the Minnesota Department of Labor and Industry (DOLI) administers and enforces the latter.
While the objectives of the OSH Act and the MNOSH Act overlap, the programs and compliance activities they each require of contractors sometimes diverge in important ways. For example, the MNOSH Act contains lockout-tagout requirements beyond those found in the OSH Act, while other features of the MNOSH Act, such as AWAIR program requirements and employer-provided PPE, do not have federal analogues.
The subject of this article is another Minnesota-specific requirement in the workplace safety regulatory space: the MNOSH Act’s safety committee requirement, and how DOLI interprets and applies it. Importantly, failure to have a properly-constituted safety committee is citable as a “serious” violation of the MNOSH Act. Contractors need to be aware of this requirement, and review their safety committee programs for compliance.
Membership Requirements for Joint Labor-Management Safety Committees
The MNOSH Act plainly requires most employers to have a “safety committee.” Minn. Stat. § 182.676. For example, “[e]very public or private employer of more than 25 employees shall establish and administer a joint labor-management safety committee.” Minn. Stat. § 182.676(a). In addition, public or private employers with 25 or fewer employees “shall establish and administer a safety committee” if their lost-workday incidence rate or workers’ compensation premium classification rating exceed certain specified thresholds. Minn. Stat. § 182.676(b). The MNOSH Act and DOLI regulations that implement it also detail various safety committee administration, meeting, and record keeping requirements.
In addition, the MNOSH Act and related DOLI regulations address who should be on the committee. On the one hand, the safety committee required of employers with more than 25 employees is a “joint labor-management” safety committee. However, as will be discussed in greater detail below, neither the MNOSH Act nor the DOLI regulations specifically define what the terms “labor” or “management” mean in this context.
On the other hand, section 182.676(d) requires that “[e]mployee safety committee members must be selected by employees.” In addition, Rule 5208.0030 requires that “[e]mployee representatives on safety and health committees shall be selected by the employee’s collective bargaining agent if one exists” or, if not, then “the employee representatives shall be selected by their peers” and the “number of employee representatives on a safety and health committee shall equal or exceed the number of management representatives on the committee.”
Notably, the MNOSH Act does expressly define the terms “employer” and “employee,” and contractors should keep these definitions in mind when reviewing or establishing their safety committees. In particular, the term “employer” includes “any person who has the power to hire, fire, or transfer” personnel, while the term “employee” includes any person “permitted to work by an employer.”
I Say “Labor” While You Say “Employee,” I Say “Management” While You Say “Employer”?
Failing to comply with the MNOSH Act’s safety committee requirements is citable as a serious violation, and could prove costly. A central part of contractor compliance is ensuring that its safety committee is properly constituted.
Importantly, contractors should be aware that DOLI has been known to enforce the “joint labor-management” requirement for safety committee composition to mean that such committees must have both “employee” and “employer” members, even though the MNOSH Act does not expressly require employers to establish and administer “joint employee-employer” safety committees.
This is a distinction that can make a difference. An example will help illustrate this point. Suppose a contractor’s “joint labor-management safety committee” is composed of two union-member general superintendents, along with a project manager and a regional project executive. Even though all four members have the power to hire and fire, and are thus technically “employers” under Chapter 182, the safety committee arguably complies with the plain language of section 182.676(a). The union-member superintendents are the “labor” members of the “joint labor-management safety committee,” while the project manager and project executive are the “management” members. If there were “employee” members on the committee, section 182.676(d) would require that they were selected by other employees. But there aren’t any “employee” members, so this selection requirement is not a factor.
However, if “joint labor-management safety committee” is construed, as DOLI does, to mean “joint employee-employer safety committee,” the contractor’s safety committee is noncompliant (because all members are “employers” with the power to hire and fire) and the contractor may be cited with a serious violation of the MNOSH Act. This is true, even if the contractor’s (allegedly improperly constituted) safety committee regularly meets, develops and implements safety programming to foster a robust safety culture, and otherwise complies with other requirements of the safety committee statute.
In this example, the difference between compliance on the one hand, and a “serious” violation on the other, comes down to the interpretation of “labor” and “management” as used in the safety committee statute. Contractors need to be aware that, despite the plain language of the statute, DOLI interprets and enforces the safety committee statute to require that safety committees include “employee” members.
It may seem clear enough that, had Legislature meant to say “joint employee-employer safety committee,” it would have done just that. But whatever the logic of this statutory interpretation, in our experience DOLI interprets and enforces subsection (a) as if “joint labor-management safety committee” were synonymous with “joint employee-employer safety committee.” And we suspect DOLI’s position would be the same with respect to employers of 25 or fewer employees that are required simply to have a “safety committee” under subsection (b) of the safety committee statute.
Contractors and employers should review their safety committee programs for compliance with not only the MNOSH Act’s requirements but also DOLI’s interpretation of those requirements. “Serious” violations aren’t reserved just for jobsite issues. A contractor could have a well-developed safety committee and safety culture, but still be hit with a “serious” violation if the composition of its safety committee runs afoul of DOLI’s interpretation of the safety committee requirements.
Join Fabyanske, Westra, Hart and Thomson, P.A. in congratulating Julia Douglass for being newly elected to the Construction Law Section Council.
Fabyanske, Westra, Hart & Thomson, P.A. has once again been recognized as one of “The Top 50 Construction Law Firms” by Construction Executive, a leading construction industry magazine for construction firms. Fabyanske, Westra, Hart and Thomson was the only firm in the Upper Midwest to be included in the list.
Fabyanske, Westra, Hart & Thomson, P.A. has been ranked as a Band 1 Construction Law Firm in Minnesota by the well-recognized Chambers professional rating service. Here’s what Chambers has to say about FWHT:
The team is known as “Esteemed for its dedicated construction group, which brings deep industry insight to disputes, contract negotiations and planning issues. Represents diverse participants from the public and private sectors, including design professionals, insurers and subcontractors. Frequently acts on large-scale regional and national projects. Numerous attorneys within the team are well known in the sector, having been appointed to leadership roles at a variety of industry bodies.”
Dean Thomson is a highly respected figure in the construction space, with experience in arbitration and litigation. “Dean is an outstanding attorney.” “He is a superb advocate and leader within his firm.” “Dean is my company’s go-to attorney for complex legal issues.“
Kyle Hart has extensive experience representing general contractors in litigation, and is also active on arbitration matters. “Kyle Hart is attentive, responsive and knowledgeable.“
Jesse Orman has a wide-ranging construction practice which covers the drafting and negotiation of contracts, as well as representing clients in litigation. He counts materials suppliers and design professionals among his clients. “Jesse provides outstanding representation.“
Mark Becker has extensive experience representing owners, contractors and design professionals in both contentious and noncontentious matters. “Mark’s knowledge of construction is tremendous.“
Rory Duggan has a wide-reaching national practice. He represents financial institutions in real estate and construction financing. “He’s an excellent lawyer who is really respected.“
To view the Chamber’s ranking page click here.
This discussion is generalized in nature and should not be considered a substitute for professional advice. © 2022 FWH&T