that MYR "was responsible for overseeing the safety program" at L.E. Myers, "authored and published a Safety Manual and numerous Safety Alerts for the use of employees of [L.E. Myers]," and, with L.E. Myers, "[was] responsible for safety training, safety instruction and safety enforcement for employees of [L.E. Myers]." (Indictment ¶ 1(k).)
The OSHA regulations that MYR is accused of violating are 29 C.F.R. § 1910.269 (a)(2)(i) and (ii), which indicate that "[e]mployees shall be trained in and familiar with the safety-related work practices, safety procedures, and other safety requirements in this section that pertain to their respective job assignments" and set out various procedures and techniques in which employees should be trained. While the passive language of these regulations allow for the required training to be provided by someone other than the employee's employer, 59 Fed. Keg. 4320, 4341 (Jan. 31, 1994) ("Clearly, the plain language of the standard allows employees to be trained by other parties."), ultimate responsibility for compliance with these regulations is placed on the employee's employer, not the party providing the training. See 29 C.F.R. § 1910.269 (a)(2) (iii) ("The employer shall determine, through regular supervision and through inspections conducted on at least an annual basis, that each employee is complying with the safety-related work practices required by this section."); 29 C.F.R. § 1910.269 (a)(2) (vii) ("The employer shall certify that each employee has received the training required by paragraph (a)(2) of this section."). Thus, only the employer of the deceased employees, not the party providing the training, can be held liable for violations of the OSHA training requirements.*fn3 As the indictment alleges only that MYR is an employer under the OSH Act, but not the employer of the deceased workers, the indictment fails to allege an OSHA violation by MYR, and consequently fails to allege an offense under section 666(e) as to MYR.
The government argues that MYR can be held liable under the multi-employer doctrine. This doctrine, recently endorsed by the Seventh Circuit, states that "on multi-employer work sites, an employer who creates a safety hazard can be liable under the [OSH] Act regardless of whether the employees threatened are its own or those of another employee on the site." United States v. Pitt-Des Moines, Inc., 168 F.3d 976, 982 (7th Cir. 1999). In Pitt-Des Moines, defendant PDM had contracted to erect structural steel for a building project. An OSHA regulation required PDM to use two bolts tightened with nuts to connect certain steel beams during one phase of the project. PDM failed to do so and a beam dropped, triggering the collapse of part of the steel structure. Two workers were killed, one of whom was not employed by PMD. PMD was convicted under section 666(e), and the Seventh Circuit affirmed, citing the multi-employer doctrine.
The multi-employer doctrine is based on section 654(a) of the OSH Act. Id. That section states:
Each employer —
(1) shall furnish to each of his employees employment and a place of
employment which are free from recognized hazards that are causing or
are likely to cause death or serious physical harm to his employees;