Following a heated confrontation with Occupational Safety and Health Administration (OSHA) investigators that was reportedly recorded and posted on social media, an Ohio roofing contractor has been cleared of multiple safety violations.
The recently released final order states Nemeckay’s Roofing and Home Improvement Co. of Richfield, Ohio is vacated of four citations totaling $12,144 in penalties since the Secretary of Labor was unable to prove the workers in question were employees.
Administrative Law Judge William Coleman determined there was no evidence that Philip Nemeckay, owner of Nemeckay’s Roofing, paid two workers to help install shingles on a home June 29 and 30, 2020, and therefore couldn't conclude he was an employer responsible for them. According to the order, on June 29, OSHA investigators witnessed people working atop the roof of a two-story home in Columbia Station without apparent fall protection. OSHA officers conducted an investigation that resulted citing Nemeckay’s Roofing for four serious violations of fall protection, ladder usage, eye protection and protective helmets.
According to the report, the homeowner previously purchased shingles and other materials and wanted a contractor to install them. The homeowner verbally agreed to pay Nemeckay’s Roofing $2,000 to install the shingles. However, Nemeckay told investigators the work was being done as a favor to the homeowner, whom he said was his cousin. Because of this, he said he wasn’t being paid for the work, nor was he paying the workers for their help. Upon further questioning, he demanded a search warrant of the investigators.
The final order says Nemeckay "became hostile" toward the investigators, using his phone to capture a 31-second video of them departing. The report claims the video is of Nemeckay shouting expletives and asking the investigators why they didn't have face masks.
In a follow-up investigation, OSHA investigators learned from the homeowner that he and Nemeckay weren’t related and that Nemeckay had reportedly told him to say they were cousins.
The Secretary of Labor alleged Nemeckay was the statutory employer of the two people who assisted him with the work. Nemeckay denied the claim that he was “an employer employing employees in his business” and said that the homeowner paid one of the workers to help. The order says there was “no affirmative evidence” that Nemeckay had paid either of the workers for their work, with the only evidence being his testimony that he didn’t pay them.
“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 (worker),” Coleman wrote. “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.”
Coleman did note, however, that Nemeckay’s “false and incomplete testimony” and making false statements during the investigation could subject him to prosecution and substantial fines or incarceration.
