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OSHA's general obligation clause is maintained in the trailer driver's death



An administrative judge in the corporate safety and health working group has confirmed a general obligation clause against a garage for cars and trailers after a trailer driver was injured when he was attached between the bed on a trailer and a

US Labor and Health Organization inspected Johnstown , Pennsylvania-based Berkebile Auto Service Inc. as a result of the lethal injury and issued a single quote and sentence on May 5, 2017, to the company to break the Public Safety and Health Act in the public interest, according to Commission documents published Thursday. Quote claims that the trailer driver was not protected against the crusher in the area between the trailer and the loaded trailer.

The company filed an early competition notice, with the main issues of the dispute being whether it was an employer under the Charter whether there was an infringement of the general obligation clause and whether there was an unforeseen breach of employment in the alleged infringement. But the law judged that the company was an employer in accordance with the charter, confirmed the general obligation clause and assessed a penalty of 3 803 SEK.

The owner argued that the fatally injured driver hired the trailer from his company and was not an employee, but the lawyer found that the company had "general control over the drivers' means" and ways to do the work "including through its towing contracts, the tools used for towing services, service call assignments, the non-negotiable rate for a driver's salary, limits on the use of "rented" trailers, the prohibition on the promotion of drivers or self-promotion, and the first two-week training of drivers according to the decision, and the owner also negotiated the terms of the towing agreement between BAS and Each driver's payment from BAS was based on the train rates established in these contracts and the drivers had no income in the fee structure or other contract terms. "" BAS had extensive control over the drivers through the owner Harold Berkebile, "the judge said." tillhandahö ll the primary tools, towing contracts and were the source of all towing occasions. He exclusively controlled the amount of pay each driver received. This unilateral control of BAS is an indication of a relationship between employer and employees. "

The company did not deny taxes from a driver's weekly salary, which is similar to an independent entrepreneurial relationship. However, the status of tax reporting is not the controlling factor in an analysis by the US Supreme Court's decision in Nationwide Mut. Darden, who analyzed whether an individual was considered to be an employee by common law, according to the judge's judgment, In this type of analysis, the company's control over the employee is a "main guide" to determine the existence of an employment relationship.

The judge rejected also the claim that an agreement signed by the drivers showed that they were independent contractors during an analysis of Darden because the conditions were not individually negotiated with a driver and stated only that there was no employer-related relationship for local, state and government. federal tax liability.

"The agreement was a generic, boilerplate, fill-in-blank blank one that only varied with the name of the entrepreneur (the driver), "said the judge. "It does not specify what type of work was agreed or the responsibility of each other. BAS claims that the lorries were hired to drivers, but there is no mention of this in the agreement. Given all aspects of the relationship between BAS and its driver, I believe that the relationship was more Like an employer-employed non-self-employed independent contractor. "

Proving a violation of the general obligation clause The secretary of employment must determine four parts: that a permit or activity at work constituted a danger, that the employer or industry recognized the danger, that the risk caused or likely caused death or serious physical injury, and that a feasible and effective means existed to eliminate or substantially reduce the risk. In this case, the legal group decided that it was a crush hazard, employees were exposed to the risk, the danger was serious and recognized by the BAS and industry, and there was a possible way to reduce the risk.

"BAS did not provide adequate working rules, training, monitoring of its employees or taking measures to prevent dangerous conditions," the judge said. "Overall, the absence of rules of work, education and attention to safety show the lack of reasonable diligence."

The indictment also rejected the allegedly confirmed defense of unforeseen misconduct because the company had no established occupational safety rules, it did not disclose these rules, it took no steps to detect breaches of occupational safety rules and it made no attempt to enforce security regulations.

The owner and a lawyer for the company could not immediately be reached for comments.


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