United States of America


1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457


Secretary of Labor,





OSHRC Docket No. 17-0274








Matthew R. Epstein, Esquire,

U.S. Department of Labor, Office of the Solicitor

Philadelphia, Pennsylvania

For the Secretary


  Richard H. Mylin, III, Esquire,

  York, Pennsylvania

   For the Respondent


BEFORE:  Keith E. Bell

                Administrative Law Judge




On October 5, 2016, Occupational Safety and Health Administration (OSHA) Compliance Officer (CO) Elaine Dailey responded to a complaint of an employee working in an unprotected trench at a residence at 1735 East Canal Road, Dover, Pennsylvania (worksite or Canal Road worksite). Speedy Rooter/Capital Plumbing, Inc. (Speedy Rooter or Respondent) had excavated a trench and was replacing a lateral sewer line at the worksite.

On January 13, 2017, OSHA issued a Citation and Notification of Penalty (citation) to Speedy Rooter with one willful and three serious violations of OSHAs construction standard for a total proposed penalty of $29,394. The citation alleged Respondent had not trained its employees on cave-in hazards, had not kept materials at least two feet from the edge of the trench, had not inspected the trench, and had not provided an adequate cave-in protection system in the trench.

Respondent filed a timely notice of contest, bringing this matter before the Occupational Safety and Health Review Commission (Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (Act).

A one-day hearing was held in Philadelphia, Pennsylvania on June 13, 2018. Four witnesses provided testimony: OSHA Compliance Officer, Elaine Daily; William Fishel (owner of the residence at the worksite); Austin Bryant (worker at the Canal Road worksite); and Andrea Crone (owner and manager of Speedy Rooter). Both parties submitted post-hearing briefs.


The parties agreed to and stipulated the following facts.

1.Respondent was hired to repair a sewer line at 1735 E. Canal Road, Dover, Pennsylvania (the “worksite”), in September 2016. Successive service calls resulted in Respondent who hired Jerry Ricketts and Austin Bryant to replace the entire sewer line from the home at that property to the sewer main on Canal Road. (Tr. 261).


2.Andrea Crone is the sole owner of Respondent and is a licensed plumber. She hired Jerry Ricketts and Austin Bryant to perform work at the worksite. Ms. Crone obtained permits and One-Call documentation for the worksite. (Tr. 261).


3.Andrea Crone or Respondent owned the excavator used at the worksite which was used by Jerry Ricketts who had signed an equipment use agreement. (Tr. 261).


4.The plywood and 2x4s installed in a trench and photographed by CSHO Dailey were not an OSHA approved shoring system and not intended as such. (Tr. 261-62).


  The primary dispute is whether the individuals working at the Canal Road worksite, Mr. Ricketts and Mr. Bryant, were employees of Speedy Rooter. Respondent asserts that because Mr. Ricketts and Mr. Bryant were independent subcontractors the citations against Speedy Rooter must be vacated.1 Respondent presented minimal assertions to refute the Secretary’s allegations that the four cited OSHA standards had been violated.

For the following reasons, I find Mr. Ricketts and Mr. Bryant were employees of Speedy Rooter, the citations are affirmed and a penalty of $29,394 is assessed.2


Based upon the record, I find that at all relevant times Speedy Rooter was engaged in a business affecting commerce and was an employer within the meaning of sections 3(3) and 3(5) of the Act. I find that the Commission has jurisdiction over the parties and subject matter in this case.3 (Tr. 259-60).


The Company and the project

At the time of the hearing, Speedy Rooter had been in business for 14 years and performed interior and exterior plumbing work, including repair and replacement of sewer lines. (Tr. 24, 244). Speedy Rooter was solely owned and managed by Andrea Crone, a licensed plumber. (Tr. 242, 261).

The project at the Canal Road worksite started a few weeks before the OSHA inspection. The Fishels hired Speedy Rooter to repair a clogged sewer line. (Tr. 30, 59, 79). Mrs. Fishel called Speedy Rooter and spoke to Andrea Crone. (Tr. 78-79, 232). Ms. Crone sent Jerry Ricketts and Austin Bryant4 to the Fishel home on two consecutive days to clear the line. (Tr. 59-60, 261). When the clog reoccurred the third day, Mr. Ricketts told Mr. Fishel that the house sewer trap, which was underground and located seven to eight feet from the house, needed to be replaced. (Tr. 35, 60).

Ms. Crone contacted Pennsylvanias One-Call5 service with a request to have the underground utilities marked before digging out the sewer trap. (Tr. 174, 246, 261; CX-13). Ms. Crone informed One-Call that the excavation would be about 4x8 feet wide and 5 to 6 feet deep. (CX-13). Ms. Crone assigned Jerry Ricketts and Austin Bryant to replace the sewer trap and delivered the backhoe owned by Speedy Rooter to the Canal Road worksite. (Tr. 179-80, 261; CX-14C).

On September 18, 2016, Mr. Bryant and Mr. Ricketts used the excavator to dig a hole that was approximately six feet deep. (Tr. 35, 60-61, 63-64; CX-13). Mr. Ricketts was in the excavation about 10 minutes to replace the trap. (Tr. 247). Mr. Fishel saw that mostly Mr. Ricketts worked inside the excavation. (Tr. 64). No cave-in protection was used. (Tr. 38).

Replacing the sewer trap did not fix the problem. (Tr. 64-65). A week later, Ms. Crone sent Mr. Ricketts and Mr. Bryant back to the Canal Road worksite where they determined the cast iron sewer lateral from the house to the Dover Boroughs main line needed to be replaced. (Tr. 65, 240-41, 247). Mr. Bryant was then assigned to a service call at another location, so Mr. Ricketts did most of the work for the sewer lateral excavation. (Tr. 39, 65). The trench was open for two days when work was interrupted by a four-day rainstorm. (Tr. 66, 248; CX-14A). Ms. Crone visited the worksite during the rainstorm to check on the trench. (Tr. 186, 235). Ms. Crone visited the Canal Road worksite three times during the project. (Tr. 186-87, 235).

Mr. Ricketts used the backhoe to dig the rest of the fifty-foot trench on October 3 and 4, 2016. (Tr. 65, 248-49; CX-9, CX-14A). Mr. Ricketts estimated the trench was about 6½ feet deep from the top of the sewer pipe. (Tr. 248; CX-14A). The excavated soil was piled along the edge of the trench. (Tr. 97; CX-9 p. 0048, CX-11A, CX-11B). Mr. Ricketts used a shovel to even out the trench floor so the pipe could be installed at the correct elevation. (Tr. 69). Gravel for the trench floor was delivered on October 4, 2016. (Tr. 166, 242).

Mr. Fishel observed Mr. Ricketts working in the trench below the spoil pile. (Tr. 81-82; CX-11A). Mr. Fishel saw that the trench was over six feet deep because it was over Mr. Ricketts head.6 (Tr. 81-82). After the old pipe was removed, 10-foot sections of new pipe were connected and then lowered into the trench by Mr. Ricketts and Mr. Bryant. (Tr. 248-49; CX-14A).

On October 5, 2016, the main sewer line was damaged during Speedy Rooters work. As a result, the Dover Borough issued an order for Speedy Rooter to cease work on the project. (Tr. 68, 252). When the cease work order was eventually lifted, Mr. Fishel did not allow Speedy Rooter to complete the project. (Tr. 209).

The Inspection

On October 5, 2016, CO Dailey was assigned to investigate a complaint of an employee working in an unprotected trench at the Fishel residence (Canal Road worksite). (Tr. 96). CO Dailey arrived at the worksite that afternoon. (Tr. 96; CX-10, p. 2).7 The CO immediately saw, next to a long trench, a posted notice from the Dover Borough to cease work until further notice (cease work order). (Tr. 97; CX-11A). The Borough shut down the worksite that morning after the citys main line was damaged. (Tr. 84; CX-10, p. 2).

No one was working at Canal Road worksite when the CO arrived. After observing the open trench, CO Dailey identified herself to Mr. Fishel. They discussed the open trench and the work that occurred at the worksite. (Tr. 106). Mr. Fishel told her that he hired Speedy Rooter about three weeks earlier to fix a clogged sewer line. (Tr. 59, 249; CX-13). Mr. Fishel believed the project took so long because Mr. Ricketts and Mr. Bryant had been reassigned to other work sites during the project. (Tr. 65).

CO Dailey photographed the open trench and the pile of excavated soil alongside it. (Tr. 99-105). The trench was approximately 2 feet wide by 50 feet long. (Tr. 115-16, 143, 248; CX-9, pp. 0045-0047). The trench walls were vertical. (Tr. 108; CX-11A, CX-11B). The CO saw the new sewer pipe resting on fresh gravel at the bottom of the trench. (Tr. 166; CX-9, p. 0044). CO Dailey collected a soil sample and observed that the soil type in the trench was previously disturbed because it was in the same location as the pre-existing sewer line. (Tr. 111-12). An excavator, ladder, sump pump, and shovels were near the trench. (Tr. 117).

In the area of the trench where the new pipe connected to the old pipe, a plywood sheet had been placed on each side of the trench, connected by perpendicular 2x4s. (Tr. 108-111, 113-14; CX-9, p. 0046; CX-11B). The plywood configuration was not designed to be a shoring system to prevent cave-ins; it had been placed in the trench after Mr. Fishel expressed concern that something was needed to hold the soil when someone worked in the trench. (Tr. 68, 113-14, 261-62).

CO Dailey measured the depth of the trench at four places around the pipe connection. (Tr. 110-11, 115-16; CX-9, pp. 0045-0046, CX-10). The first depth measurement was 4 feet 2 inches, the second was 4 feet 7 inches, the third was 5 feet 8 inches, and the fourth was 6 feet 8 inches. (Tr. 110, 115-16; CX-9, pp. 0045-0046, CX-10). The spoil pile extended along the 50-foot length of the trench. (Tr. 97; CX-9 p. 0048, CX-11A, CX-11B). CO Dailey measured the spoil pile as six feet high by eight feet wide. (Tr. 97, 100, 143; CX-7, CX-11B). The spoil pile was less than two feet from the edge of the trench. (Tr. 108, 139; CX-9, p. 0048).

The CO testified that during the investigative interview, Ms. Crone admitted the trench was deeper than five feet and that she knew that shoring was required for a trench over five feet in depth. (Tr. 123, 183). Further, when the CO provided OSHAs definition of a competent person, Ms. Crone admitted the trench had not been inspected by a competent person. (Tr. 124).


Ricketts and Bryant were employees of Speedy Rooter

  Respondent asserts that Mr. Ricketts and Mr. Bryant were not employees. Respondent argues that Mr. Ricketts and Mr. Bryant were paid as independent subcontractors and that it did not control the worksite. (R. Br. 7, 9). As discussed below, these arguments are rejected as unsupported by the evidence. For the following reasons, I find Mr. Ricketts and Mr. Bryant were employees of Speedy Rooter under the Act.

Darden Analysis

“[T]he Secretary has the burden of proving [the] cited respondent is the employer of the affected workers at the site.”  All Star Realty Co., Inc., 24 BNA OSHC 1356, 1358 (No. 12-1597, 2014) (citation omitted). The Act defines an employee as “an employee of an employer who is employed in a business of his employer which affects commerce.” 29 U.S.C. § 652(3).8

The Supreme Court has relied on the common law for guidance to determine whether an individual is an employee, or alternatively, the kind of person the common law would consider an employee, in similarly worded statutes. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (Darden). The Commission applies the Darden factors to determine if an individual is an employee of the cited employer. Sharon & Walter Constr., Inc., 23 BNA OSHC 1286, 1289 (No. 00-1402, 2010) (S&W).

The common-law agency doctrine set forth in Darden focuses on the company’s “right to control the manner and means by which the product” is accomplished. S&W, 23 BNA OSHC at 1289 (citation omitted). The company’s control over the worker is a “principal guidepost” to determine the existence of an employment relationship. Froedtert Mem'l Lutheran Hosp., Inc., 20 BNA OSHC 1500, 1506 (No. 97-1839, 2004) (citations omitted). Additional factors relevant to the analysis include:

the skill required [for the job]; 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; [and] the provision of employee benefits and the tax treatment of the hired party.


S&W, 23 BNA OSHC at 1289 (citing Darden, 503 U.S. at 323-24).

Control over the manner and means of accomplishing work

“Control over the ‘manner and means of accomplishing the work’ must include control over the workers and not just the results of their work.” Don Davis, 19 BNA OSHC 1477, 1482 (No. 96-1378, 2001) (emphasis in original).

Respondent argues that Speedy Rooter did not have control of the Canal Road worksite, that Mr. Ricketts determined scope of work, that the homeowners sole contact for the job was Mr. Ricketts (not Speedy Rooter), and that Speedy Rooter provided no instructions for the worksite. (R. Br. 5, 7). As discussed below, I find Mr. Ricketts and Mr. Bryant did not have control over the means and manner of accomplishing the work.

  To support its claim that Mr. Ricketts, not Speedy Rooter, had control of the worksite, Respondent asserts that Mr. Ricketts determined the scope of work. (R. Br. 8). This assertion is not supported by the record. Mr. Ricketts was assigned to the Canal Road worksite by Ms. Crone. (Tr. 59-60, 261). Mr. Ricketts and Mr. Bryant called in from the job site to let Ms. Crone know the approximate measurement for the length of the trench (from house to sidewalk), what materials were needed, and that a backhoe was required. (Tr. 38, 252, 257; CX-14A, CX-14B). Mr. Ricketts and Mr. Bryant provided information to Ms. Crone, so that she could determine the scope and costs of the job. Further, neither Mr. Ricketts nor Mr. Bryant could control the scope of work at the Canal Road site because they could not obtain a permit from the Dover Borough. (Tr. 177-78, 182). This demonstrates Speedy Rooters control over the worksite.

  Respondent also asserts that because Mr. Ricketts was the homeowners primary contact, Mr. Ricketts controlled the worksite. (R. Br. 8). This is not supported by the record. The initial call for repair was made to Speedy Rooter directly, and then Speedy Rooter sent Mr. Ricketts out to make the repair. (Tr. 59, 79, 231). Further, Mr. Fishel testified that when the job was taking too long, he called Speedy Rooter and discussed the problem with Ms. Crone. (Tr. 80). He stated, I never called Jerry. I don’t have his phone number. I have no connection with Jerry other than when he was on the job site.” (Tr. 80). This shows that, through Ms. Crone, Speedy Rooter had control of the worksite. Mr. Fishels contact with Mr. Ricketts was not related to overall control of the site.

Ms. Crone accepted, scheduled, and assigned plumbing jobs for the Respondent. (Tr. 59-60, 231, 252, 261; CX-14A). Ms. Crone hired Jerry Ricketts and Austin Bryant to perform work at the Canal Road worksite. (Tr. 261). Mr. Ricketts and Mr. Bryant received Ms. Crones approval before work began. (Tr. 29-30, 38, 252, 257). If additional supplies were required, Ms. Crone had to approve and authorize payment for the supplies.9 (Tr. 30).

Ms. Crone assigned the work and determined the scope of work at a job site.10 Ms. Crone exercised significant control over the means and manner to accomplish the work. This factor weighs in favor of finding a traditional employer-employee relationship.

Work location, hours worked, and right to assign additional projects

Ms. Crone controlled the daily schedule and work location. Mr. Bryant described that for a typical assignment, he received a text message with the location of the assigned job. He picked up Speedy Rooter’s van, which included the tools for plumbing work, and went to the assigned job. When finished with that job, he contacted Ms. Crone for his next assignment. (Tr. 19-20).

Ms. Crone scheduled the Canal Road project with the homeowner and then assigned Mr. Ricketts and Mr. Bryant to the project. (Tr. 252, 261). Ms. Crone directed Mr. Bryant to leave the Canal Road job to work at a different Speedy Rooter site. (Tr. 39, 247). Mr. Ricketts described himself as on-call 24 hours a day for plumbing emergencies. (Tr. 252; CX-14A). Ms. Crone determined which Speedy Rooter jobs were assigned to Mr. Ricketts and Mr. Bryant, thus controlling both the work location and schedule. (Tr. 19, 39, 231, 261; CX-14A). See Barbosa Group, Inc., 21 BNA OSHC 1865, 1867 (No. 02-0865, 2007), affd, 296 F. Appx 211 (2d Cir. 2008) (unpublished) (finding employer-employee relationship where respondent made daily assignments).

This control over work assignments and location is indicative of an employer-employee relationship, not of an independent contractor relationship.

Skills required

Mr. Bryant described himself as self-trained and that he and Mr. Ricketts worked together to solve problems at a worksite. (Tr. 27-29, 34). Mr. Ricketts and Mr. Bryant were not licensed plumbers. (Tr. 34, 182). Only a licensed plumber could obtain a Dover Borough work permit for the Canal Road job. (Tr. 182). Ms. Crone was Speedy Rooter’s licensed plumber for the project. (Tr. 182, 261; CX-12).

Mr. Ricketts and Mr. Bryant were not plumbers and had no specialized skill or training in excavations. This factor weighs in favor of a traditional employer-employee relationship. See A.C. Castle Constr., 882 F.3d 34, 39 (1st Cir. 2018) (finding an employer-employee relationship where the company owner held the license that permitted work); see also, Absolute Roofing & Constr., 580 F. App’x 357, 361 (6th Cir. 2014) (unpublished) (Absolute) (high level of skill suggests an independent contractor relationship and a low-level of skill suggests an employer-employee relationship).

Source of tools

Speedy Rooter provided the essential tools necessary to complete the excavation and plumbing work at the Canal Road worksite. Mr. Bryant and Mr. Ricketts drove a Speedy Rooter van to the job site. (Tr. 19, 242; CX-14C). Speedy Rooter owned the backhoe used to excavate the trench. (Tr. 261). Ms. Crone delivered the backhoe to the Canal Road site. (Tr. 235, 241, 254; CX-14B, CX-14C). The ladder, shovels, and sump pump at the worksite were provided by Speedy Rooter.11 (Tr. 19-20, 202, 241-42, 251-52; CX-14A, CX-14B). Ms. Crone contacted One-Call so utilities could be marked before excavating. (Tr. 174-78; CX-13). Ms. Crone acquired the necessary permit from the Dover Borough. (Tr. 177-78, 182; CX-12).

Mr. Ricketts and Mr. Bryant occasionally used their own small hand tools at a worksite; however, all the essential tools were provided by Speedy Rooter. This factor supports an employer-employee relationship because the tools necessary for the job were supplied by Speedy Rooter. See Loomis Cabinet Co. v. OSHRC, 20 F.3d 938, 942 (9th Cir. 1994) (finding employer status where employer provided tools); Absolute, 580 F.Appx at 361 (all tools onsite were the property of employer).

The work was a regular part of Speedy Rooter’s business

  Speedy Rooter was a plumbing contractor that did interior and exterior plumbing work, including excavation, repair, and replacement of sewer lines. (Tr. 24, 38, 244, 261). The owner, Ms. Crone, was a licensed plumber. (Tr. 261). Mr. Ricketts and Mr. Bryant did plumbing work for Speedy Rooter at the Canal Road worksite. (Tr. 261). The work by Mr. Ricketts and Mr. Bryant was a regular part of Speedy Rooters business.

This factor is indicative of a traditional employer-employee relationship. See generally Slingluff v. OSHRC, 425 F.3d 861, 869 (10th Cir. 2005) (stucco contractor that hired worker to help with stucco work, employed the worker in question).

Duration of the relationship and hiring or paying of assistants

Mr. Ricketts and Mr. Bryant each worked for Speedy Rooter for about two years. (Tr. 16, 181, 243; CX-14C). During the two years that Mr. Ricketts worked for Speedy Rooter he completed about 30 excavation jobs in addition to other assignments. (Tr. 236-38). Mr. Bryant worked for Speedy Rooter about 40 hours a week during the 2016 busy season. (Tr. 17-18). Neither Mr. Ricketts nor Mr. Bryant hired an assistant. (Tr. 28). Speedy Rooter had a direct, individual relationship with both Mr. Ricketts and Mr. Bryant, and Ms. Crone assigned each to the Canal Road worksite. (Tr. 191).

The duration and open-ended nature of the arrangement reflect a traditional employer-employee relationship. See Absolute, 580 F. App’x at 362 (citations omitted) (indefinite duration and indefinite nature of relationship favors employee status). I find these factors weigh in favor of an employer-employee relationship.

Method of payment

Each Friday, Mr. Bryant was paid based on an hourly rate, usually around $11 per hour, and generally in cash. (Tr. 17-18, 210). Mr. Ricketts was also paid on an hourly basis in cash each week. (Tr. 146, 210, 252; CX-14A). Ms. Crone confirmed that she typically paid Mr. Bryant and Mr. Ricketts in cash. (Tr. 210).

I find that payment in cash, at an hourly rate is indicative of an employer-employee relationship. See Absolute, 580 F. Appx at 363. (a set hourly wage weighs in favor of employee status).

Tax treatment and employee benefits

  Speedy Rooter provided no employee benefits to Mr. Ricketts or Mr. Bryant. (Tr. 188-90). Speedy Rooter did not withhold income tax or social security tax from Mr. Bryant’s and Mr. Ricketts pay; it sent IRS 1099 forms to Mr. Bryant and Mr. Ricketts. (Tr. 188, 204; CX-17). The 1099 forms sent to Mr. Ricketts and Mr. Bryant for the 2016 tax year were placed in evidence.12 (CX-17). There was no documentation provided for the 2015 tax year.13 (Tr. 203, 205).

The tax treatment and benefits are like those of an independent contractor relationship. However, the Commission has noted that tax reporting status alone is not the controlling factor in a Darden analysis. See S&W, 23 BNA OSHC at 1290. (“failure to withhold federal income and social security taxes was . . . not a bona fide reflection of an authentic independent contractor relationship.”) I find the tax treatment and lack of benefits are not dispositive to the determination of the type of employment relationship here, especially when considered in the light of routine payments to Mr. Ricketts and Mr. Bryant in cash.

The agreements

Ms. Crone testified that the Subcontractor Agreement (RX-15) and Equipment Use Agreement (RX-16) between Speedy Rooter and Mr. Ricketts proved he was an independent contractor. (R. Br. 4). Ms. Crone testified that she considered both Mr. Bryant and Mr. Ricketts to be independent subcontractors; however, she only had a written agreement with Mr. Ricketts.14 (Tr. 224-25).

  The Subcontractor Agreement was a boilerplate agreement that was not personalized for Mr. Ricketts or Speedy Rooter. (Tr. 200; RX-15). The names of the parties to the agreement only appear in the signature blocks at the end of the agreement. (RX-15). The Subcontractor Agreement required the subcontractor (Ricketts) to furnish all labor and materials to perform the work and to contact public utilities before excavation. (RX-15, pp. 0128, 0130). As discussed above, Mr. Ricketts did not furnish all labor and materials or contact the public utilities for the Canal Road worksite. Rather, Speedy Rooter provided most of the materials, contacted the utility prior to excavation, and assigned Mr. Bryant to work alongside Mr. Ricketts at the worksite.

Further, the Subcontractor Agreement required the subcontractor to maintain commercial general liability, automobile, commercial umbrella, and workers compensation insurance. (RX-15, p. 0132). Ms. Crone claimed that Mr. Ricketts provided a certificate of insurance to Speedy Rooter in 2015. (Tr. 196). However, Respondent submitted no document to suppor