Full question:
Would my wife and I be considered self employed by OSHA (under the U.S. Department of Labor) if we entered into a partnership formed under a Member Managed LLC business structure?
- Category: Employment
- Subcategory: Independent Contractor
- Date:
- State: National
Answer:
The Occupational Health and Safety Act of 1970 (OSHA) applies to all employers and employees, with several exceptions, including truly self-employed persons. OSHA states that “Each employer shall
(1) 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” and
(2) comply with occupational safety and health standards promulgated under this Act. Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.”
The following are OSHA definitions:
Commerce is defined as “trade, traffic, commerce, transportation, or communication among the several States, or between a State and any place outside thereof, or within the District of Columbia, or a possession of the United States (other than the Trust Territory of the Pacific Islands), or between points in the same State but through a point outside thereof.”
Person is defined as “one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any organized group of persons.”
Employer is defined as “a person engaged in a business affecting commerce who has employees, but does not include the United States (not including the United States Postal Service) or any State or political subdivision of a State.”
Employee is defined as “an employee of an employer who is employed in a business of his employer which affects commerce.”
According to the OSHA Area Office in Montana, a limited liability corporation would be considered a “business” entity itself and would fall within the jurisdiction of OSHA. Thus, persons working for such LLC would be considered employees of the LLC. Even though an LLC would be subject to OSHA requirements, partial exemptions from certain recording and reporting requirements are allowed for employers with ten or less employees and businesses in certain specific low hazard industries. All employers, however, must report to OSHA any workplace incident that results in a fatality or the hospitalization of three or more employees.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
