Nemeckay's Roofing and Home Improvement Company
Four roofing citations vacated for lack of employee proof
Apply this to your situation
This order from 2022 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
OSHA cited a sole-proprietor roofing business for alleged head, eye, fall, and ladder protection violations observed at a two-story house. The judge rejected the proprietor's claim that OSHA's observations and brief entry onto the property violated the Fourth Amendment. OSHA still had to prove that the cited business had at least one employee covered by the Occupational Safety and Health Act. Applying the common-law control factors, the judge found the evidence insufficient to establish that either of the two other roof workers had a master-servant relationship with the proprietor. All four serious citation items and the proposed penalties totaling $12,144 were vacated, despite the judge's separate findings that the proprietor had made false and obstructive statements during the investigation and proceeding.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.100(a), 1926.102(a)(1), 1926.501(b)(13), 1926.1053(b)(1)
- Outcome: All four serious roofing citation items and $12,144 in proposed penalties were vacated.
- Key point: OSHA must prove that a cited sole proprietor had at least one employee under the common-law control test before occupational safety standards can be enforced against the business.
Full text (OSHRC public release)
Document
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3457
SECRETARY OF LABOR,
Complainant,
v.
OSHRC Docket No.
20-1309
NEMECKAY’S ROOFING AND HOME IMPROVEMENT COMPANY,
Respondent.
DECISION
AND
ORDER
APPEARANCES:
For the Complainant:
Adam Lubow, Esq.
Office of the Solicitor
U.S. Department of Labor
Cleveland, Ohio
For the Respondent:
Philip
Nemeckay, Owner/Sole Proprietor
Richfield, Ohio
BEFORE: Administrative Law Judge
William S. Coleman
INTRODUCTION
Mr. Philip
Nemeckay
of Richfield, Ohio,
owns and operates
the
named
Respondent,
Nemeckay’s
Roofing and Home Improvement Company
(Nemeckay’s
Roofing).
Nemeckay’s
Roofing is
a sole proprietorship
and as such
it
has
no legal identity separate from Mr.
Nemeckay.
See
Patterson v. V & M Auto Body ,
63 Ohio St.3d 573, 57475,
589 N.E.2d 1306, 1308 (1992)
(noting that a “sole proprietorship has no legal identity separate from that of the individual who owns it”
and
that “[i]t may do business under a fictitious name if it
chooses, but
doing business under another name does not create an entity distinct from the person operating
the business”). Accordingly,
all
references
herein
to
Nemeckay’s
Roofing
constitute
references
to
Mr.
Philip
Nemeckay
as well, and vice versa.
On June 29, 2020,
a Compliance Safety and Health Officer (CO)
from
the
Occupational Safety and Health Administration (OSHA)
was driving an official
government
automobile
in Columbia Station, Ohio, when he
noticed
people
working atop the
roof of a
two-story
house
without
any apparent means of
fall protection. The CO initiated an
investigation
that
ultimately
resulted in OSHA issuing
on July 15,
2020
a Citation and Notification of Penalty
to
Nemeckay’s
Roofing
that
alleged
four serious violations
of
occupational
safety
standards
that had been promulgated
under
the
Occupational Safety and Health Act
of 1970
(Act),
29 U.S.C. §§ 651–678 (Act). The citation
alleged
that
on or about June 29, 2020,
Nemeckay’s
Roofing
violated
construction industry
standards
codified at 29 C.F.R. pt. 1926
pertaining to
the use of
(1) protective helmets
[§ 1926.100(a)],
(2) eye protection
[§ 1926.102(a)(1)],
(3) fall protection in residential construction
[§ 1926.501(b)(13)], and
(4) portable ladders
[§ 1926.1053(b)(1)].
(Respectively
designated as
Items 1, 2, 3, and 4 of
Citation 1.) Penalties that totaled $12,144 were proposed for the alleged violations.
Mr.
Nemeckay
timely contested the
Citation and Notification of Penalty
and thereby brought the matter before the
independent
Occupational Safety and Health Review Commission (Commission) pursuant to section 10(c) of the
Act. 29 U.S.C. § 659(c).
The Secretary
of Labor (Secretary)
thereafter filed
a
formal complaint
pursuant to Commission Rule 34(a) [29 C.F.R. § 2200.34(a)]
that
re-alleged
the
allegations of the
Citation
and Notification of Penalty. Mr.
Nemeckay, who
represented
himself in these Commission proceedings, filed a formal answer
that generally
denied
the allegations of the complaint,
including
denying
the
Secretary’s averment
that
he
was “an
employer
employing employees in his business
at the
[identified]
workplace.”
The
answer also
effectively
asserted
that the
OSHA
inspection violated
the
U.S. Constitution’s Fourth Amendment.
The
matter was
assigned to the undersigned
Commission Judge
for hearing and decision. The
evidentiary
hearing
was conducted
by remote means
utilizing
videoconferencing technology
on
September 29,
2021. (The parties assented to conducting the hearing by remote means instead of having
the hearing
conducted
in-person
in
a Cleveland courtroom.)
In lieu of filing written posthearing briefs pursuant to Commission Rule 74(a) [29 C.F.R. § 2200.74(a)], the
parties opted to make
oral closing arguments on the record at the close of the
hearing. (T. 195).
The principal
questions of law presented
for decision
are as follows:
· Did
Mr.
Nemeckay
have
a
constitutionally protected
reasonable expectation of privacy while working on the
exterior
of his customer’s house?
Decision :
No.
· Did the Secretary
establish
that
Mr.
Nemeckay
is an “employer” as defined by the Act?
Decision : No.
T he Citation and Notification of Penalty must
accordingly
be vacated b ecause the
Secretary
has
not
establish ed
that
Mr.
Nemeckay
is an “employer”
as defined by the Act
and thus
has
not
established
that
he
was
required
to
comply with
occupational safety and health standards
promulgated under the Act .
FINDINGS OF FACT
Except where the following numbered paragraphs expressly state that evidence respecting a matter of fact was not presented or was not preponderant, the following facts were established by at least a preponderance of the evidence:
- Mr. Philip
Nemeckay
(Nemeckay) owns and operates
Nemeckay’s
Roofing
as a
sole proprietorship.
(T.
17).
Nemeckay’s
Roofing
engages
in
residential
construction
activities in the Cleveland, Ohio area. (T.
29).
Oral
Agreement
to Install Shingles
-
In June 2020,
Nemeckay
made
an agreement
with the
owneroccupant of a singlefamily residence (House) located in Columbia Station, Ohio,
to install shingles on the House. The owneroccupant testified at the hearing,
and
he
is identified
herein
as
the
Homeowner. (T. 11013). -
The Homeowner had previously purchased the
shingles and associated
materials
(flashing and nails)
that he wanted
installed
on
his
House, and he was looking for a contractor
who would
agree to
install
those
shingles. (T. 11215). -
The Homeowner learned about
Nemeckay
from
an acquaintance who happened to be
Nemeckay’s
cousin. The Homeowner
contacted
Nemeckay
and asked
Nemeckay
to
bid on the job. (T. 37-38, 112-13). -
In mid-June 2020,
Nemeckay
went to the House to assess the roofing job. He had
not previously
been to the House,
and he had not previously
met the
Homeowner. (T. 114). -
Nemeckay
orally
agreed
to install the shingles, and the Homeowner orally agreed to pay
him
$2,000
to do so. (T.
114). The
agreement was never
reduced to
writing. -
Nemeckay
installed the shingles
on
June 29
& 30, 2020. (T.
58,
129, 217). -
The Homeowner paid
Nemeckay
$1,000 in cash, but there is no evidence when the cash payment was made.
(T. 121-22). The Homeowner paid
Nemeckay
the other
$1,000 by a check payable to “Phil
Nemeckay” dated
June 30, 2020. Nemeckay
deposited
that check
to his account
at a
local
bank
at 3:27 p.m. on June 30 (the second and final day of the roofing job).
(Ex. C-6).
Install ing the
Shingles
-
On June 29,
Nemeckay
picked
up shingles
that he would later install on the House
from the
supplier
that had sold
them to the
Homeowner,
and
he
transported them to the House in a
dump
truck
that he uses in his business. (T.
60,
114,
129). -
On June 29, two other individuals assisted
Nemeckay
in the roofing job.
(The Secretary alleges that
Nemeckay
was the statutory employer of
both.)
-
One of those
two
individuals was Nicholas Armstrong. In the photographs that are in Exhibit C-5,
Armstrong is shirtless. (T. 79). -
The other individual who assisted
Nemeckay
on June 29
is the person
wearing
the
“safety green”
tee
shirt
in
photographs that comprise
Exhibit
C5
and
the video clip that comprises Exhibit
C-9. There is no evidence of this individual’s
identity, and so he is
identified
herein
as Worker Two. -
Nemeckay
arranged for both Armstrong and Worker Two to be present to assist him. (T. 117-18, 123). -
Armstrong and Worker Two assisted
Nemeckay
in
getting
the shingles
up
to the
roof. (T. 78). For some of the time on
June 29,
Worker Two
worked at ground level below the roof’s edge
picking up debris. At other times he
also worked atop the
roof. (T. 78;
Exs. C-5 & C-9). -
On June 29,
Nemeckay, Armstrong,
and Worker Two
worked
at the House from about 7:30 a.m. to about
11:30 a.m., when
Nemeckay
decided to
end
work for the day. (T. 5758). (There is no evidence
of when during this timeframe the CO
initiated the
OSHA
inspection.) -
Nemeckay
testified that he
ended
work around 11:30 a.m.
on June 29
because
a certain
phase
of the
roofing
job
has been completed
and because it was getting hot. (T. 57-58). -
Nemeckay
and Armstrong returned to the House on June 30
at about 7:30 a.m.
(T. 59). The roofing job was completed that day,
probably
sometime before 3:27 p.m.
(the time
that
Nemeckay
deposited the Homeowner’s check at
a
local
bank). (T. 58; Ex. C-6).
-
There is no evidence that Worker Two returned on June 30
and thus no evidence
addressing
whether Worker Two
worked
that day. -
Even though
Nemeckay
had
agreed
to install only the shingles that the Homeowner had
previously purchased,
the Homeowner had not purchased quite enough
shingles
to complete the job,
and so
Nemeckay
finished
the job
with
other
shingles that
Nemeckay
had on hand. (T. 125).
Even though
Nemeckay
provided a small
number
of shingles to complete the job, the Homeowner
did not pay
Nemeckay
any more than the original
agreed
price of
$2,000. (T. 115).
- The
part of the
House’s
roof
on which
Nemeckay, Armstrong,
and Worker Two all worked
on June 29
had a slope
of
3 in 12 (vertical to horizontal), and the edge of the roof was about 15 to 17 feet above ground level. (T. 158-59, 161;
Exs. C-5 & C-9). Nemeckay, Armstrong, and Worker Two
each
accessed this part of the
House’s roof
on June 29
by
using two
portable
extension
ladders. The
side rails of
those two
ladders
did not
extend at least three feet above the upper landing surface to which the ladders were used to gain access.
(T.
74-75,
164-65;
Exs. C-4
&
C-5).
-
On June 29,
Nemeckay, Armstrong,
and Worker Two all worked on the roof
without using any form of fall protection
that
would be
permissible
for use in residential construction work
under 29 C.F.R. § 1926.501(b)(13). (T.
72-73,
84-85,
15864; Ex. C-9). -
On June 29, Armstrong
used
a
pneumatic
nail gun
to install shingles
without wearing protective eyewear. Armstrong
also used
either a hand-held circular saw or
a handheld
drill
without wearing any protective eyewear. Armstrong was in plain sight of
Nemeckay
while
operating
handheld
power tools
on the roof
without wearing eye protection.
(T.
84,
154; Ex. C-5 at 6).
Nemeckay
recorded
a video
(received in evidence as Exhibit
C-9)
that
depicts
Armstrong operating a
handheld
power tool without wearing any protective eyewear. (T. 8485).
- On June 29, 2020, Worker Two
worked part of the time on the ground
collecting
debris
while
Nemeckay
and Armstrong
were on the roof
using hand
tools to install
shingles. Worker Two was working in an area
on the ground
where there
was a
potential for
any
objects
falling
from the roof
to
strike him.
Worker Two was not wearing a
protective helmet while in this area and was
in plain sight of
Nemeckay. (T.
79,
14445; Ex. C-5 at 3).
OSHA
Inspection on June 29
& Follow-up
on July 1
24.
On the morning of June 29, 2020, the CO was on duty and driving an official
government
auto
on a public street that intersected
the
public street on which the House
is located. (T. 91, 111). An OSHA
trainee
(Trainee)
was riding with the CO. (T. 134). From his vantage point
in the auto on the public street, the CO
saw
Nemeckay
and Armstrong working on the roof of the House without using any discernable form of fall protection. (T. 133-35). Worker Two was working on the ground
at the time. (Ex. C-5).
-
The Trainee took some photographs
of the House and workers
while seated in the auto when it was located on a public street. Those photographs were received in evidence at Exhibit C-5. The CO then
drove
the
auto
into the House’s driveway and parked. The CO and the Trainee both exited the
auto
and approached the House on foot. Once near the House, the CO
attempted to get the attention of
Nemeckay
and Armstrong, who were on the roof. The CO
stated he was from OSHA,
and
he
displayed
his official credentials. Nemeckay
soon
descended
from the roof,
and he and the CO spoke
while in front of the
House. (T. 136-37). -
Nemeckay
falsely told the CO that he was not in charge of the site. (T. 138). -
Nemeckay
falsely told the CO that the roofing work was being done as a favor for the Homeowner. -
Nemeckay
falsely told the CO that
the Homeowner
was his cousin. (T. 39; 138). -
Nemeckay
falsely told the CO that he was not being paid for the work. (T. 138). -
Nemeckay
told the CO that he was not paying the other two workers for their work. (T. 138).
(The evidence is not preponderant
as to whether
this statement was truthful
or false). -
The CO then asked
Nemeckay
questions to follow-up on
his
representations about the work
not being done for pay but
rather
as
a
favor
for a relative. He posed these questions
to
glean
more information to assess whether an OSHA investigation would be
appropriate
considering
Nemeckay’s
representations. (T. 138-39). Instead of answering those inquiries,
however,
Nemeckay
asked the CO for a search warrant, which the CO did not have. -
Even though the CO believed that a
search
warrant was not required unless the Homeowner
were to
have
refused
consent to the inspection,
Nemeckay
became hostile and aggressive toward the CO,
so
“to avoid conflict”
the CO
decided that he and the Trainee
ought to
“back up” from
Nemeckay
and
leave the premises. (T. 139). -
Nemeckay
used
the camera on
his cell phone to make a 31second video that showed the CO and the Trainee departing. At the beginning of the
video,
the CO and the Trainee
have begun
to
get back in the auto
and
Nemeckay
is
approaching
the
auto
on foot. The video ends
when
the
auto
has
backed
up to the end of the driveway. Nemeckay
later posted the video on social media for anyone to see and hear. (T. 87, 14142). The
video was received in evidence as Exhibit C-10. In the video,
Nemeckay
is heard
shouting
the following
at the CO and the Trainee as they are departing the grounds:
Get out of here! What are you
wantin',
you
harassin'
us? We’re
workin'! We’re
workin'! Get the f*** out of here! I got your license
number. Good.
Get out of here! You’re both, you’re both
bull*. Government! Ain’t
ya
got,
where’s your masks at? Where’s your masks government? Where’s your masks at [vulgarity]? Where’s your mask? Come on! Where’s your masks at? Corona! Piece of s!
-
Altogether, the CO and the Trainee were on the grounds of the House
on June 29
for about five minutes. (T. 119, 138). The CO did not
have the opportunity before departing the grounds to
interview Armstrong, Worker Two, or the Homeowner
(who
had been
inside the House the entire time that the CO was on the grounds). (T. 119). -
Soon after
the
CO’s departure,
Nemeckay
told the Homeowner that OSHA officials had been there. The Homeowner had heard some “commotion” as the CO was backing the auto out of the driveway,
but
the
Homeowner
had no
contact with the CO on June 29. The Homeowner
did not
refuse
consent
or otherwise communicate any objection to the
CO and the Trainee being
on the House’s grounds
to inspect
and investigate. (T. 120; Ex. C-10). -
Nemeckay
showed
the
31-second
video
he had made
to
the Homeowner. (T. 120; Ex. C10). Nemeckay
asked the Homeowner
to falsely
tell
any OSHA officials who might later contact the Homeowner
that
he and
Nemeckay
were relatives. (T. 120). -
About two days later, the CO returned to the House accompanied by two deputy sheriffs
to
interview the Homeowner to verify
the
representations
that
Nemeckay
had made to
the CO
about
Nemeckay
and the Homeowner
being
cousins and the roofing work being done without charge. (T. 142-43). The CO first asked the Homeowner whether
Nemeckay
was his uncle, and the Homeowner falsely responded affirmatively. The CO then
informed
the Homeowner that
Nemeckay
had
told the CO
that they
were cousins (not nephew and uncle), and
in response
the Homeowner falsely told the CO
that
he and
Nemeckay
were “like cousins.” And
then the
Homeowner
gave a
third
answer, this time
falsely stating
that
he
and
Nemeckay
were
“just real good friends.” (T. 143). -
At the hearing, the Homeowner admitted
in sworn testimony
that he had lied to the CO about having a familial or social relationship with
Nemeckay, explaining that he had
done so because he
“just wanted this thing to blow over smoothly and be done with it.” (T. 121). -
The Homeowner truthfully told the CO that he did not know the identity of the other two individuals working with
Nemeckay
(Armstrong and Worker Two),
and
he truthfully told the CO
that he believed
Nemeckay
had
arranged for their presence. (T. 143).
Facts
Bearing on
Whether
Nemeckay
Had a
Master-Servant Relationship
with Armstrong or Worker Two
-
On
his 2019 and 2020 federal tax returns,
Nemeckay
reported labor costs
in the operation of his construction business
(exclusive of monies he paid himself)
to have been respectively $11,800 and $12,800. (Ex. C-7,
at
6 & 22 [Sched. C, Line 37]; T. 3435). In both tax returns,
Nemeckay
checked a box to
indicate
that he
had made payments
in his construction business
that would require him to file IRS Form 1099
(which would
represent payments of nonemployment income
that
Nemeckay
had
made to another taxpayer). (Ex. C-7 at
5
& 21 [Schedule C, Lines I & J]). Both tax returns also indicated that
in the operation of his construction business
Nemeckay
had not
paid any
wages. (Ex. C-7 at
5
& 21 [Schedule C, Line 26]). -
Nemeckay
applied for and received a
federal
Paycheck Protection Program
loan of
$8,130 in April 2021. (T. 35-37). He testified that he had not obtained the loan to make any payroll payments and that he believed he would have been eligible for a larger loan if he
had
had any employees to pay. (T. 3537, 108). There is no evidence that
Nemeckay
has applied to have that loan forgiven. (T. 37). -
Nemeckay
has known Armstrong for about 25 years, and he describes Armstrong as being like a son to him. (T. 50-51). Nemeckay
testified that “every now and again” he calls on Armstrong to help him with his jobs “if I ever need a hand or something,” and that he has never paid Armstrong for that help. (T. 51-52). Nemeckay
testified that Armstrong learned how to install shingles from him. (T. 52-53). Nemeckay
testified further that
he did not know what Armstrong does to make a living “right now,” but that he understands that
Armstrong
sometimes
does construction work. (T. 50). -
There is no
affirmative
evidence that
Nemeckay
paid either Armstrong or Worker Two for their work, and the only
direct
evidence
bearing on this issue of fact is
Nemeckay’s
testimony that he did not pay either of them. 1
(T. 51, 77-78).
-
Armstrong lives about 25 miles from the House. Nemeckay
provided Armstrong with the House’s address, and Armstrong drove there in his own auto on both June 29 and 30. (T. 54-55, 60). -
Worker Two arrived at the House on June 29 in a separate vehicle. (T. 116).
-
The
two
ladders that
Nemeckay, Armstrong, and Worker Two used to access the roof belonged to the Homeowner. (T. 123). -
Both
Nemeckay
and Armstrong used
Nemeckay’s
pneumatic nail gun to install the shingles, but they used the Homeowner’s compressor and air hose to power the nail gun. (T. 62, 65, 72, 123, 125). -
Nemeckay
testified that if Armstrong
were to have
used
a hammer instead of a nail gun to install the shingles on the House that “[i]t would have been fine” with
Nemeckay
even though it is faster to install the shingles with a nail gun
than with a hammer. (T. 65). -
Nemeckay
brought a power drill to use
to do the roofing
work. (T. 85-86). -
Armstrong did not use any of his own tools in doing the roofing work. (T. 128).
-
There is no evidence what tools, if any, Worker Two used in assisting
Nemeckay
on June 29. -
With respect to providing or requiring workers to use safety equipment on a job site,
Nemeckay
testified that he believed no fall protection was necessary for the work atop the House’s roof because the roof was “almost flat” with
its
slope of
3 in 12. (T. 70). With respect to eye protection,
Nemeckay
testified, “I always make sure people wear safety glasses” and that it was possible that
Nemeckay
had provided to Armstrong the eyewear that Armstrong had
placed on
top of his head (not protecting his eyes) when Armstrong was using a pneumatic nail gun. (T. 71). Nemeckay
testified that he
ended
work
before noon on
June 29 in part because it had gotten hot. (T. 57-58). -
The Homeowner did not
arrange for
Worker Two to assist
Nemeckay. The Homeowner was not acquainted with either Armstrong or Worker Two. The Homeowner did not pay Armstrong or Worker Two for their work. (T. 123). -
As indicated in the “Discussion” section that follows this paragraph, it is likely that
Nemeckay’s
hearing
testimony as to the following was
knowingly false: (a) that he did not recall
how long he had known the Homeowner (T. 38), (b) that he did not recall whether the Homeowner had asked him to make a bid on installing the shingles (T. 40), (c) that
the Homeowner did not offer to pay him
to do the job
(T. 40), (d)
that
he
believed the Homeowner had
arranged for
Worker Two to help
him
do the roofing work
(T. 77-78), (e) that the Homeowner directed Worker Two to
help
him
move the
shingles
onto the rooftop
(T. 78), (f) that
he
had never met Worker Two before June 29, 2020
(T. 77),
(g) that
he
did not know
who
Worker Two
was and had never seen him before (T. 7677), (h) that
he
did
not ask Worker Two
to help him with the roofing job
(T. 79),
(i) that
he
did not know how or when Worker Two arrived at the House
(T. 77),
(j) that
he
did not ask the Homeowner to tell OSHA officials that he and the Homeowner were cousins
(T. 99), (k) that
he
did not
ask
the Homeowner to tell OSHA officials that
the roofing work was not a “job.” (T. 99).
DISCUSSION
The Commission obtained jurisdiction under section 10(c) of the Act upon
Nemeckay’s
timely filing of a notice of contest. 29 U.S.C. § 659(c).
Whether
Nemeckay
Had a
Constitutionally Protected
Reasonable Expectation of Privacy
While Engaged in
Business
Activit y
on the House’s
Rooftop and Grounds
Nemeckay
contends that the warrantless inspection
on
June 29
violated his Fourth Amendment
right to be free of unreasonable searches
and seizures.
The Fourth Amendment governs
non-consensual
inspections conducted pursuant to the OSH Act, and
those
administrative inspections are subject to the
Fourth Amendment’s
warrant requirement. Marshall v. Barlow's, Inc. , 436 U.S. 307 (1978).
“The Fourth Amendment protects against intrusions only into areas where an individual has a reasonable expectation of privacy.” L.R. Willson & Sons, Inc. , 17 BNA OSHC 2059, 2060 (No. 94-1546, 1997),
aff'd in
relevant
part , 134 F.3d 1235, 1238
(4th Cir. 1998)
(finding no Fourth
Amendment violation);
Oliver v. United States , 466 U.S. 170, 177 (1984)
(“ the touchstone of
[Fourth]
Amendment analysis has been the question whether a person has a constitutionally protected reasonable expectation of privacy ”).
Nemeckay
had no reasonable expectation of privacy respecting
any
of his
activities
that
the CO observed from
the CO’s
position
while
seated in
the government vehicle
on
a
public street
(which is the vantage point
from which the photographs in Exhibit C-5
were taken). Reg ’ l Scaffolding & Hoisting Co., Inc. , 17 BNA OSHC 2067, 2069 (No. 93-577, 1997) ( ruling that
where the respondent’s activities were
viewable from a vantage point in a public place , the r espondent had
no reas onable e xpect ation of
privacy
protectable under Fourth Amendment ) .
As for the approximately five
minutes that
the CO and Trainee were on the House’s grounds,
Nemeckay
has
failed to “demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is
reasonable;
i.e., one that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter , 525 U.S. 83, 88 (1998), quoting
Rakas v. Illinois , 439 U.S. 128, 143-44
(1978). Nemeckay
was present on the
rooftop and
grounds of
the
House
solely for the purpose of
engaging
in his
business
enterprise, and he
had no previous connection with the House or the Homeowner. Cf.
Minnesota v. Carter , 525 U.S. at 91 (ruling
that
with respect to a
commercial invitee’s challenge to a
warrantless
observation through an exterior window into
the
interior
of
another’s
residence, that
“the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents' situation is closer to that of one simply permitted on the premises” and
thus
not to have any protectable privacy interests
under the Fourth Amendment).
Further, when the CO decided to depart the
grounds
moments after
Nemeckay
asked the CO
about
a
search
warrant, the CO effectively
acceded to
Nemeckay’s
apparent withholding of consent to
continue
the inspection
(notwithstanding that
Nemeckay’s
consent was not constitutionally
mandated).
For these reasons, the evidence fails to establish that the inspection on June 29 violated
Nemeckay’s
rights under the Fourth Amendment.
Whether
Nemeckay
Wa s an “Employer”
Section 3(5) of the Act defines the t erm “employer” as “a person engaged in a business affecting commerce who has employees.” 2
29 U.S.C. § 652(5).
Only an “employer”
as defined
may be cited for a violation of
occupational
safety and
health standards promulgated
under the
Act. 29 U.S.C. § 658(a);
Allstate Painting & Contracting , 21 BNA OSHC 1033, 1035 (No. 971631, 2005) (consolidated).
The Secretary bears the burden of establishing
that
the
cited
respondent
is an
“ employer ” as defined
by
section 3(5). See Lake
C nty .
Sewer Co., Inc. , 22 BNA OSHC 1522, 1523 ( No. 07-1786 , 2009).
Nemeckay
denies that
he
meets either prong of the Act’s definition of the term “employer.”
He denies
(1)
that he
is “engaged in a business affecting commerce,”
and
(2)
that he
“has employees.”
Whether
Nemeckay
“ Engaged in a Business Affecting Commerce ”
Even though
Nemeckay’s
sole proprietorship is a small business
in the construction industry,
that
small business
nevertheless
constitutes a
“ business affecting commer ce”
under
section 3(5).
Slingluff v. OSHRC , 425 F.3d
861, 865 (10 th
Cir. 2005) (holding that a small stuccoing business
i s a business affect ing
commerce because the “ economic activity of stuccoing/construction, as an aggregate, affects interstate commerce ”);
Clarence M. Jones , 11 BNA OSHC 1529, 1531 (No. 77-3676, 1983)
(holding that construction work is within the class of activities Congress intended to regulate
under the Act ).
The Secretary has
established that
Nemeckay
is
“ a person
engaged in a business affecting commerce” within the meaning of section 3(5).
(Findings
of Fact ¶ 1).
Whether
Nemeckay
“ Has Employees ”
The Secretary alleges that both Armstrong and Worker Two
were
Nemeckay’s
employees
during
the two-day roofing job at the House . The Secretary d oes
not assert
and did not
seek to prove
that
any other individuals were
Nemeckay ’s
employees . ( See
Sec’y’s closing oral argument, T. 199-208.)
Having “ one single employee is sufficient to invoke coverage under the Act. ” Don Davis , 19 BNA OSHC 1477,
1479
(No. 96-1378, 2001).
So, t o establish that
Nemeckay
was covered by the Act, the Secretary
was required to establish that
either Armstrong or Worker Two
w as
Nemeckay’s
employee . Lake
C nty .
Sewer Co., Inc. , 22 BNA OSHC at 1523 .
As discussed below, the evidence is insufficient to establish that either
of them was
Nemeckay’s
employee .
In determining whether an identified worker
relates to a putative employer as
either
an employee or as an independent contractor ,
both the Commission and the Sixth Circuit Court of
Appeals 3
appl y
the
common law
agency
test
described
in
Nationwide Mut. Ins. Co. v. Darden
( Darden ),
503 U.S. 318 (1992) .
See
All Star Realty Co. , 24 BNA OSHC 1356, 1358-59 (No.
12 1597,
2014) (applying
Darden
in determining whether two individuals were statutory employees of the cited company ) ;
Absolute Roofing & Constr., Inc. v. Sec’y of Labor
( Absolute Roofing ) , 580 F.
App ’ x
357
(6th Cir. 2014)
( applying
Darden
in
affirming Commission Judge’s decision that
an individual was
an
employee and not an independent contractor)
(unpublished) ;
see also
Clackamas Gastroenterology Assocs., P.C. v. Wells
( Clackamas ),
538 U.S. 440,
445 n.5
(2003)
(noting that the
Darden
test is
geared toward “ drawing a line between independent contractors and employees ”) ;
Froedtert Mem. Lutheran Hosp., Inc.
( Froedtert ) , 20 BNA OSHC 1500 ,
1506
(No. 97 1839, 2004)
(noting that the
Darden
test “ generally envisions a two dimensional focus
[of]
whether the worker relates to a putative employer as an employee or as an independent contractor ”).
The common law test of
Darden
“incorporate[s] traditional agency law criteria for identifying master-servant relationships.” Darden
at 319. Th e
Court in
Darden
articulat ed
th is
common law
test as follows :
In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required;
the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part
of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
Darden
at 323-24 , quoting
C mty .
for Creative Non Violence v. Reid , 490 U.S. 730,
751-52
(1989) .
“The crux of
Darden’s
common law agency test” is
contained in its
first stated factor—"the hiring party's right to control the manner and means by which the product is accomplished.” Weary v. Cochran , 377 F.3d 522, 525 (6th Cir. 2004);
see also
Loomis Cabinet Co. , 15 BNA OSHC 1635, 1638 (No. 882012, 1992)
(stating that a “central inquiry” of the
Darden
test is “the question of whether the alleged employer controls the workplace”),
aff'd , 20 F.3d 938 (9th Cir. 1994);
Don Davis , 19 BNA OSHC
at
1480
(“The
Darden
test originates in the common law, which looks to the element of control by the hiring party over the hired party”);
Sharon & Walter Const., Inc. ,
23 BNA OSHC 1286, 1289 (No. 00-1402, 2010)
(noting that in
Darden
“the Court focused primarily” on the first stated factor).
The Commission has stated that the application of
Darden ’s first stated factor “must include” consideration of
the putative employer’s “control over the
workers
and not just the results of their work.” Don Davis , 19 BNA OSHC
at
1482;
see also Allstate Painting , 21 BNA OSHC at 1035 (“the primary focus is whether the putative employer controls the workers”);
Froedtert , 20 BNA OSHC
at 1506 (noting that “ the control exercised over a worker remains a principal guidepost”
in determining whether an employment relationship exists), quoting
Clackamas ,
538 U.S. at 448.
The factors that the Court in
Darden
described as being “relevant” to the
test’s
central inquiry
of
the
putative
employer’s control over the workplace and the workers “includes within the rubric of ‘control’ factors that address the economic and financial aspects of the relationship between the parties, such as matters of compensation, taxation, working hours, and provision of
tools and equipment.” Don Davis , 19 BNA OSHC at
1480;
a ccord
Absolute Roofing ,
580 F.
App ’ x
at 363 (noting that
Darden ’s first stated factor
is “a broad consideration that is embodied in many of the specific factors articulated in
Darden ,”
quoting
Weary v. Cochran , 377 F.3d
at
525.
The determination of whether a
person is an “ employee ” under the
Darden
test “ is a mixed question of law and fact that a judge normally can make as a matter of law. ”
J ammal
v. Am. Fam. Ins. Co.
( Jammal ) , 914 F.3d 449, 45 3 –5 4
(6th Cir. 2019) .
“ Each
Darden
factor is
…
itself a
‘ legal standard ’
that the district court is applying to the facts. ” Id.
at 456. “ [T] he
district
court's findings underlying its holding on each of the
Darden
factors are factual findings, and the court's ultimate conclusion as to whether the
[workers]
were employees is a question of law. ” Id.
at 455;
see also
United States v. Doig , 950 F.2d 411, 414 n.3 (7th Cir. 1991) (“[W] hether
an individual is an employer under ” the Act
and thus subject to criminal liability
under sec. 17(e) is a question for the court, not
the jury ) ;
cf. FreightCar
Am . , Inc. ,
No. 18-0970, 2021 WL 2311871, at *4
(OSHRC, Mar. 3, 2021)
(concluding “that
the preponderance of the evidence does not show that
[respondent]
is the employer of the
…
workers ”).
The Court in
Darden
noted that the “common-law test contains
no shorthand formula or magic phrase that can be applied to find the answer,” and that “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.” Darden , 503 U.S.
at 324,
quoting
NLRB v. United Ins. Co. of Am . , 390 U.S.
254, 258
(1968). The Commission has echoed this view, observing
“that
there is no precision to the weighing of all of these factors .” Froedtert ,
20 BNA OSHC
at 1508 .
Even though “there is no
precision to the weighing ”
of the
Darden
factors
in any given case ,
the
conclusion of law
that a cited respondent is an “employer”
requires
an
evidentiary record
that
demonstrates
the
respondent
has sufficient
authority
to
control
both t he workplace and the
worker
to
meet
Darden ’s
common law test . See
Freight C ar
Am . , Inc. , 2021 WL 2311871, at *4
(determining the evidentiary record was insufficient to establish employment relationship, noting that “we are troubled by the lack of evidence addressing many of the factors listed in
Darden ”);
All Star Realty Co. , 24 BNA OSHC
at 1359 (noting that the “ Secretary has produced so little evidence of control that when we apply the
remaining
Darden
factors to this record, the evidence either weighs clearly against an
employment relationship or is equivocal at best ”) .
Nemeckay’s
R ight to
C ontrol the
M anner and
M eans by
W hich
the
P roduct is
A ccomplished
( Nemeckay’s
Control
o ver the W orkplace and the W orkers )
Nemeckay
agreed
to install shingles
on the House
for profit, and to
perform that
work
he
enlisted the assistance of
both Armstrong and Worker Two. The
greater
weight of the
evidence
showed
that
Nemeckay
had control over the
performance of the roofing work itself. Nevertheless,
“control over the ‘means and methods’ by which a task is accomplished
is not dispositive of employment
status under the Act.” Don Davis ,
19 BNA OSHC
at
1479.
Here, as in
Don Davis , the Secretary must show that
Nemeckay
had “control over the
workers
and not just the results of their work.” Id.
at
1482.
There is
scant
evidence that
Nemeckay
had control over either Armstrong or Worker Two
beyond controlling the
results of their work. The sparse record in this regard is
due in large part
to
Nemeckay’s
decision to provide false and incomplete testimony as to many matters. However, the many falsehoods that
Nemeckay
uttered
in his
sworn
testimony do not by themselves constitute
affirmative
evidence that
Nemeckay
had the right to control either Armstrong or Worker Two. See United States v. Eisen , 974 F.2d 246, 259 (2d Cir. 1992) (noting that the jury in criminal trial “is free to draw negative inferences from an untruthful witness's testimony as long as there is affirmative testimony to supplement or corroborate those negative inferences”).
Presumably,
Nemeckay
chose to testify falsely
and incompletely
in
responding
to many questions
because he
believed that
he would not prevail if
he testified
truthfully
and completely. 4 But
Nemeckay
represented
himself at the hearing, and he is not trained in the law.
It is
certainly
possible that if
Nemeckay
had
given
truthful and
complete responses to all
the
questions put to him,
some of
those
responses
might have
supported his position that neither
worker
was his employee, or
might at least
have been neutral on the issue.
Nemeckay’s
false testimony
to questions seeking to
elicit evidence
that
would
bear on
his control
over
Armstrong and Worker Two, standing
alone,
does not
amount to
substantial evidence
on which to find
that
Nemeckay
possessed such
control to
have
created
a
common law masterservant relationship
with either
worker.
See
Roper Corp. v. NLRB , 712 F.2d 306, 310 (7th Cir. 1983)
(holding that
an
administrative law judge’s finding that two witnesses were
untruthful
did not constitute substantial evidence
“that the opposite of that to which
they
testified was true,”
noting that
“if such ‘proof’ were acceptable as sufficient evidence, effective review of fact-finding would involve analysis of a chimera”).
Rather, some evidence
that is independent of
Nemeckay’s
false testimony
and
that would
supplement or
corroborate
the sought-after
negative inference
would be
necessary
before that
negative inference
may be drawn. United States v. Eisen , 974 F.2d
at
259.
Skill Required
The evidence suggests that
Armstrong provided skilled labor
in assisting
Nemeckay
in
installing
the shingles. (Findings of Fact ¶ 42).
This
generally
tilts in favor of independent contractor
status.
The only evidence of
the type of work that
Worker Two
performed
was
to help
Nemeckay
move the shingles to the rooftop
and that
he collected debris from off the ground.
(Findings of Fact ¶ 14).
Nemeckay
recorded a
video (Ex. C-9)
that shows Worker Two
standing
on the rooftop, but there is
no evidence that bears on
whether Worker Two was doing any
skilled
work
on the rooftop. The
dearth of evidence
regarding
the full scope of
Worker Two’s
work activities
is
mostly
a result of
Nemeckay’s
willful failure to testify
truthfully and
forthrightly about Worker Two.
Source of the Instrumentalities and Tools
There is no evidence what tools, if any, Worker Two used on June 29, again because
Nemeckay
decided not to
testify
truthfully and forthrightly about Worker Two.
Armstrong did not use any of his own tools in doing the roofing work. (Findings of Fact ¶ 50 ). Armstrong used
Nemeckay’s
pneumatic nail
gun,
and
in the video at Exhibit C-9
he
is seen and heard
using
Nemeckay’s
circular saw or drill . (Findings of Fact
¶ ¶ 22, 47 ).
The
H omeowner provided the
two
ladders that were used to access the roof . (Findings of Fact ¶ 46 ). The Homeowner
also provided
an air
compressor and
air
hose
that
both
Nemeckay
and Armstrong used to power
Nemeckay’s
pneumatic nail gun. (Findings of Fact ¶ 47 ). T here is no evidence
that
bear s
on whether
Nemeckay
would have supplied th e
necessary
ladders, air compressor, and
air
hose to do the work if the Homeowner had not
allowed
Nemeckay
to use
that equipment .
The
affirmative evidence that Armstrong
used none of his own tools and instead used
tools
and equipment
belonging
to
Nemeckay
or the Homeowner
weighs
in favor of
employee status. See
Absolute Roofing ,
580 F.
App’x
at
361-62.
Location of the Work
All the roofing work took place
at the House
on which
Nemeckay
had
agreed
to
install shingles. This
Darden
factor has no weight here because the roofing work would be done at
the
location of the construction site
regardless of the status of the workers as employees or independent contractors.
Duration of the Relationship between the Parties
Nemeckay
and Armstrong have known each other for
many
years and have a close personal relationship. The only evidence of their
working
relationship is
Nemeckay’s
testimony
that sometimes
Nemeckay
asks
Armstrong to help him
on his jobs
and that he has never paid Armstrong
for
the help
that
Armstrong has
provided. Armstrong testified
at the hearing, but he
was not
asked
about his history of
helping
Nemeckay
in his business or whether
Nemeckay
had ever paid him for
that
help.
And so, there
is
no
testimony
from Armstrong
on those subjects that is available to be considered and its credibility and reliability assessed.
There is no evidence of the duration of
Nemeckay’s
relationship with Worker Two, but this is
because
Nemeckay
falsely testified that he had never met
Worker Two before and did not know
him. Nemeckay’s
testimony that the Homeowner had arranged for Worker Two to be present was decisively
contradicted
by the Homeowner’s credible testimony to the contrary. The Homeowner’s credible testimony
proved
Nemeckay’s
contrary
testimony that he did not know the identity of Worker Two
to be
incredible. While it is
likely that
Nemeckay
and Worker Two had some prior working relationship,
findings about the
duration and nature of that prior relationship would be
speculative
on this record. This is so even though
the
absence of substantial evidence
on this point is
a result of
Nemeckay
having
willfully
obstructed the search for the truth by providing
false
and incomplete
testimony
regarding
his knowledge of
Worker Two.
Hir ing
Party's
Right to Assign Additional Projects
There is no evidence that
Nemeckay
has any right to assign additional projects to either Armstrong or Worker Two.
Extent of the Hired Party's Discretion
Over
When and How Long to Work
There is evidence that
from
time-to-time
Nemeckay
asks Armstrong to assist him
in his business, but there is no evidence that Armstrong is
somehow
obliged to
do so when asked. Similarly, there is no evidence that
Nemeckay
had
any
authority
to
call upon
Worker Two
and summon him
to work. While
Nemeckay
controlled the start and ending times for the work on the House,
his
control over
the means and manner of installing the shingles on the House is not dispositive of whether
Nemeckay
had such control over either Armstrong or Worker Two that a master-servant relationship arose. See
Don Davis ,
19 BNA OSHC
at 1479.
Method of Payment
There is no evidence that
Nemeckay
paid either Armstrong or Worker Two for work on the House. In view of
Nemeckay’s
close personal relationship with Armstrong,
Nemeckay’s
testimony that he did not pay Armstrong
for his work on the House
(and
that he
had never paid Armstrong) is not
implausible.
In contrast, it is implausible that Worker Two assisted
Nemeckay
for
no pay. Nemeckay
certainly realizes this, which may be why he
suggested in his testimony that the Homeowner might have paid
Worker Two, since
Nemeckay
claimed not to have paid him.
(T. 76-78).
If it were assumed that the roofing job was completed in a day and a half of work, and that
Nemeckay
had
devoted
twelve hours
of his own time
to complete the
job,
then if
Nemeckay
retained the entire $2,000 that the Homeowner paid
for the work,
Nemeckay
would have been paid
at the rate of about
$166
per
hour.
If
Nemeckay
did in fact pay Armstrong or Worker Two
(or both), he
likely
paid them
in cash, possibly
with
some of the $1,000 cash
payment
that the Homeowner
had
given
Nemeckay. 5
Hired Party’s Role in Hiring and Paying Assistants
There is no evidence that either Armstrong or Worker Two had authority to hire and pay any assistants.
W ork
as P art of the
H iring
P arty’s
R egular
B usiness , and
Whether the Hiring Party is in Business
Nemeckay
is in the roofing business, and the work
performed by
Armstrong and Worker Two was
integral to
that
business. These factors weigh in favor of
concluding
a master-servant relationship existed.
Provision of Employee Benefits ;
Tax Treatment
of the Hired Party
Since there is no evidence that
Nemeckay
paid either Armstrong or Worker Two for their work on the House, there is no evidence of any employee benefits or
the
tax treatment of any pay or benefits. The only evidence
is
that
Nemeckay
has
historically treated
any paid labor
in his business
to have been independent contractors
for purposes of his personal income tax returns .
(Findings of Fact ¶ 40 ).
Cf.
Sharon & Walter Const., Inc. , 23 BNA OSHC
at 1290 (finding “failure to withhold federal income and social security taxes was … not a bona fide reflection of an authentic independent contractor relationship”).
Conclusion
of Law
Based on the
Darden
Factors
Based on the foregoing
analysis of the
Darden
factors,
the evidence
is insufficient to
establish that a common law master-servant relationship existed between
Nemeckay
and either Armstrong or Worker Two.
It is possible that
Nemeckay
will regard this
conclusion
that the Secretary
did not
meet the
burden to prove that
Nemeckay
was a
statutory employer
to
vindicate him. He might also regard this result to validate
(1)
his
act of making
knowing material misrepresentations to the CO during the investigation,
(2)
his
profane
belligerence
toward
the
OSHA officials
engaged in the proper performance of
their official duties,
(3)
his
recruiting
the Homeowner
into
his effort to
obstruct the investigation, and
(4)
his
providing knowingly false testimony
in these Commission proceedings.
He ought not do so.
Nemeckay’s
knowingly false
and incomplete
testimony at the hearing was
contemptuous of
the adjudicatory process
and prejudicial to the administration of justice. Cf.
In re Weiss , 703 F.2d 653, 662–64 (2d Cir.
1983) (holding that false or evasive testimony is tantamount to refusal to answer and is properly punished by contempt). Nemeckay’s
actions could subject
him to prosecution and resulting substantial fines and/or incarceration
for perjury as well as
for
knowingly
making
materially
false statements
during the investigation. See , e.g.,
United States v. Craigue , 565 F. Supp. 3d 267 (D.N.H. 2021) (prosecution under 18 U.S.C. § 1001 for knowingly and willfully making
materially
false statement to an OSHA agent
that certain workers were subcontractors and not the defendant’s employees).
ORDER
The foregoing decision constitutes findings of fact and conclusions of law
on all material issues of fact, law, or discretion
in accordance
with Commission Rule 90(a)(1). 29 C.F.R.
§ 2200.90(a)(1).
Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that
Items
1
through 4
of
Citation 1
that
allege
serious
violations
of 29 C.F.R.
§§ 1926.100(a),
1926.102(a)(1),
1926.501(b)(13),
&
1926.1053(b)(1), along with their
associated proposed penalties, are
VACATED.
s/
William S. Coleman
WILLIAM S. COLEMAN
Administrative Law Judge
Dated:
September 19, 2022
"
1
Although
Armstrong
testi fied at the hearing , he was not asked whether Nemeckay had paid him for his work on the House. Nemeckay
conducted the following two question direct examination
of Armstrong , which
is
the entirety of
Armstrong’s
testimony
(T. 129) :
Q: Whose tools and ladders were we using on
[Homeowner’s] home on June of 2020?
A: We were using the homeowner's tools and ladders. I mean, I guess we were using all the homeowner's tools.
Q: And why did I bring my dump truck there?
A: Because we had to take up some shingles. We had to -- he bought shingles, so we had to take them out of the truck, carry them up on the roof.
2
The terms “commerce,” “person,” and “employees” that appear in the definition of “employer” are themselves defined terms in
s ub sectio ns
3,
4 and
6,
29 U.S.C. § 652, in pertinent part as follows :
(3) The term “commerce” means trade, traffic, commerce, transportation, or communication among the several States, or between a State and any place outside thereof, . . . or between points in the same State but through a point outside thereof.
(4) The term “person” means one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any organized group of persons.
(6) The term “employee” means an employee of an employer who is employed in a business of his employer which affects commerce.
3
U nder section 11 of the Act ,
the Commission’s final order in this matter
is subject to judicial review
in
t he Sixth Circuit Court of Appeals. I n deciding a case, the Commission
generally
applies the precedent of the
circuit
court of appeals
to which that decision may be appealed.
Kerns Bros. Tree Serv. , 18 BNA OSHC 2064, 2067 (No. 96 1719, 2000).
4
Nemeckay’s false representations before the Commission began with his written notice of contest dated August 7, 2020, in which he falsely asserted that he
“was not working as a paid contractor,” but rather had been working on the roof of his cousin’s house “solely as family helping out.”
In the face of
unassailable
evidence presented at the hearing, Nemeckay
did not deny
that
the Homeowner
had paid him as a paid contractor and that the Homeowner
was not his family
member.
5
The Secretary obtained by subpoena records of
Nemeckay’s checking account to which Nemeckay had deposited the $1,000
check
that the Homeowner
wrote
to Nemeckay. (T. 4647). Those
bank records apparently did not reveal
Nemeckay having written
any checks to Armstrong or anyone else.
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