The owner of a Saco roofing company who is charged with workplace manslaughter says he cannot force his workers to comply with federal safety standards on his job sites because they are independent contractors, but the Maine Department of Labor and a roofing industry legal group say that is incorrect.
Alan Loignon
Alan D. Loignon II was working for Purvis Home Improvement when he died Dec. 13 after falling off a roof on Munjoy Hill in Portland. Loignon was not wearing a safety harness at the job site.
Shawn D. Purvis, 44, of Saco, who owns the business and hired Loignon, faces one count of workplace manslaughter and one count of manslaughter in the death. The manslaughter charge carries a maximum penalty of 30 years in prison and a $50,000 fine; the workplace manslaughter count carries a penalty of up to 5 years in prison and a $5,000 fine.
Purvis’ arraignment is scheduled for May 20 in Portland Unified Criminal Court.
Under federal OSHA guidelines, any employer whose worker is exposed to a drop of more than 6 feet where there is no guardrail is required to make sure workers use fall protection, whether by personal safety harnesses, catch nets or other fall-arresting systems.
But Purvis, in multiple interviews, has denied wrongdoing and blamed Loignon for not wearing the safety gear, contending that because Purvis designates his workers as independent contractors, he cannot force them to comply with the regulations. Purvis said he encourages his workers to follow all OSHA guidelines and provides the necessary equipment for them to comply.
“I provide everything for them to be safe,” Purvis said Thursday. “I’m not a babysitter for 30-year-old men. I do sales. That’s my job. These are 30-year-old men who chose, for whatever reason, not to (wear the safety gear). That’s not my fault.”
But whether a company hires subcontractors or employees doesn’t matter when it comes to workplace safety, said a spokeswoman for the state Department of Labor.
“For the question on enforcing OSHA regulations, general contractors are responsible for the overall safety of their work site, regardless of whether workers are employees or independent contractors,” Jessica Picard, communications manager for the department, wrote in an email.
On job sites where there are many contractors or subcontractors, OSHA uses a legal rationale called the multi-employer worksite doctrine, and uses a process to determine which of the employers or contractors on a jobsite might be liable for a violation. For instance, if an employer directly created the hazard or has general control over the worksite, that employer can be cited by OSHA for a violation committed by a subcontractor.
This principle is laid out in a two-page guide published by the National Roofing Legal Resource Center, which advises in its first sentence that roofers who exclusively use subcontractors are still liable for OSHA violations.
“Many roofing contractors are surprised to learn they can be subject to an Occupational Safety and Health Administration citation in instances where they subcontract all their work for a particular project and, with the exception of a foreman or superintendent overseeing the subcontractor’s work, have no physical presence on-site,” according to the guide. “Based on OSHA’s multi-employer worksite doctrine, in such cases a roofing contractor can be cited by OSHA for violations committed by its subcontractor.”
David Webbert, an attorney at Johnson Webbert & Young and president of the Maine employment lawyers association, said there is nothing preventing Purvis from requiring his workers to follow federal safety regulations, even if they are considered independent contractors.
The distinction between contractors and employees can be complicated, and the analysis can change depending on many factors, but in general, federal guidelines apply.
“I think he’s turning that upside down a little bit,” Webbert said. “You could have a painter come to your house, and you say, ‘look, you can do it however you want, but you have to follow all federal safety requirements, including the type of equip you use.’ That doesn’t turn them into an employee.”
Purvis has been cited multiple times by OSHA for failing to provide fall protection stretching back more than a decade, and he has racked up nearly $44,000 in fines since 2012, but he has refused to pay them, he said, because he believes OSHA’s interpretation of their own rules is incorrect, he said.
In addition to the criminal charge, Purvis could soon face a lawsuit.
Loignon’s fiancee, Kristina Huff, 28, of Old Orchard Beach has hired an attorney, Michael Bigos of Berman Simmons, who said he has been building a case for a wrongful death lawsuit and believes he will be able to show that Purvis misclassified his workers.
Huff said she met Loignon in grade school and they have been together since she was in eighth grade. They were never married, but were inseparable, and have two girls together who are 8 and 2 years old.
“The absolute best part of my and my girls’ day was when Daddy came home,” Huff said. “He was an outstanding dad. He truly loved his girls. His girls shined with him, and he shined with them. It was like a proud man with his chest all puffed out.”
Alan Loignon and Kristina Huff sit with AlexZandria and Anasta Zia in August. Huff, who plans a wrongful-death lawsuit, said, “The absolute best part of my and my girls’ day was when Daddy came home.” Photo courtesy of Kristina Huff
John Leavitt, general manager of the New England Council of Carpenters, said he’s watched over the last 20 years as more and more contractors try to misclassify their workers as independent contractors to save on overhead costs and taxes. The end result, he said, is that workers lose valuable protections such as workman’s comp and Social Security benefits.
“It makes it difficult for a legitimate employer to compete, so it’s driving the legitimate contractors out of the business,” Leavitt said. “I hate to use the term race to the bottom, but that’s what it is. The push to work unsafe and the push to work on your own and put the liability on the individual are killing the industry.”
Purvis said he also does not carry workman’s comp insurance.
“Why would someone who doesn’t have employees have worker’s comp insurance?” he said, adding that Loignon and his other workers should buy their own insurance with the wages he pays them.
“Al (Loignon) made exceptional money,” Purvis said. “How Al chose to spend it as a free man in a free country, is his choice.”
Matt Byrne can be contacted at 791-6303 or at:
mbyrne@pressherald.com
Twitter: MattByrnePPH
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