Last summer, well-known podcaster Joe Rogan debated fellow podcaster and sometimes-libertarian Dave Rubin about the necessity of having and enforcing building code regulations (see the YouTube video here — salty language alert).

Michael C. Duff

Rogan, who is not generally unsympathetic to libertarian positions, reacted with incredulity when Rubin suggested that high-tech apps (Yelp was the particular flavor mentioned) and rapid dissemination of a contractor’s noncompliance with best building practices would be sufficient (for market-competitive reasons) to deter risky building practices.

Why was Rogan incredulous? Because he has had family involved in the construction industry (apparently inter-generationally) and knows better (at a visceral level).

As a Maine lawyer, I was horrified to read last December of the death of 30-year-old Alan Loignon, who fell from the third-story roof of a home in the Munjoy Hill section of Portland (not far from where I first handled cases as a new workers’ compensation lawyer many years ago).

According to the Portland Press Herald, in a story on May 20, the responsible contractor on the job, one Purvis, argued that he is not an employer and instead hires independent subcontractors, and while he encourages workers to use the extensive collection of safety gear he provides, he cannot force them to comply.

Purvis said he has battled The Occupational Safety and Health Administration for a dozen years over this point, and he has refused to pay the roughly $44,000 in fines the safety agency has tried to levy against him.

Purvis further lamented, "Every single day, I show up at the job site … and I tell them, please, be safe, everything you need is here ... I can’t sit there 24/7 and watch subcontractors. It’s either they’re going to wear (the safety gear) or they won’t. It’s like wearing a seat belt, it’s either you do it or you don’t ... I can supply everything to be OSHA-approved, but I can’t sit there and watch these guys all day long. That’s their job. They’re self-employed."

In addition to being wrong as a matter of both Maine law and OSHA regulation, Purvis’ account runs counter to my experience. Like Rogan, I’ve been around the block a time or two. In a prior life, when my boss required me to put something on, I put it on. But that perhaps was not really the way it happened. When my boss did not really care if I put safety equipment on, I was much less likely to put it on — especially if it took a few minutes to do so.

Frankly, fairly or unfairly, I don’t believe Purvis’ account, and it doesn’t sound like anyone else does, either.

For an exercise in frustration, I would again direct the reader to a book I’ve mentioned previously, "The Wounded Soldiers of Industry." The first three chapters of the book chronicle all the things we knew by 1830 didn’t work in deterring workplace injury: voluntary compliance, regulation without teeth, inspectors without authority.

Oh, yes: It was also claimed, back in the day, that it was the workers’ failure to provide for his own safety that was the true cause of workplace injury. One can perhaps sympathize with the decision of my former home state of Maine to conclude that some disregard of workplace safety by contractors is simply beyond the pale and rises to the level of actionable manslaughter.  

Michael C. Duff is associate dean for student programs and external relations, and is professor of law, at the University of Wyoming College of Law. This entry is republished from the Workers' Compensation Law Professors blog, with permission.