Judge Rules Against Contractor, Upholds $162K in Fall Protection Fines

A federal administrative law judge has determined that New Hampshire general contractor Barry Billcliff, doing business as Merrimack Valley Roofing and under other alleged business names, willfully exposed his employees to fall safety hazards and held him personally liable for more than $160,000 in penalties and attorneys' fees.

The action follows an investigation by the U.S. Department of Labor's Occupational Safety and Health Administration and citations for six violations by Billcliff at a Devens worksite. The contractor chose to contest the findings before the independent Occupational Safety and Health Review Commission.

The Sandown-based employer contended that he was not an employer under the Occupational Safety and Health Act, should not be held individually liable for the violations, was not a controlling employer under OSHA's multi-employer policy and lacked sufficient connection to the work site to be considered an employer. Administrative Law Judge Dennis L. Phillips found Billcliff was not credible in his testimony.

After a two-part hearing in April and June 2023, Judge Phillips' decision did the following: 

• Determined Billcliff unsuccessfully tried to evade accountability by using aliases and doing business under multiple alleged corporate names, had no evidence of a valid, registered corporation or limited liability company relevant to the job site, and was personally liable for the OSHA penalties.
• Rejected his claim that he lacked sufficient connections to the job site.
• Found Billcliff was a controlling employer under OSHA's multi-employer policy and, as such, was required to take reasonable measures to protect workers at the job site, including subcontractor employees, which Billcliff did not do.
• Upheld the fall protection violation as willful, noting that Billcliff did not take any measures that would have helped protect roofing workers, despite years of roofing industry experience and a past OSHA citation for a similar violation.
• Found Billcliff repeatedly lied during the inspection, litigation and at trial, and was evasive about the bank account into which the payments for the roofing work were deposited, all of which constituted additional evidence of willfulness.
• Ordered him to pay OSHA penalties greater than originally proposed, after taking into account his dishonest conduct when considering the penalty for the willful violation.
• Sanctioned Billcliff for not complying with litigation obligations regarding the bank records and ordered him to pay $162,274 in OSHA penalties and $3,215 in attorneys' fees to the department.

View Administrative Law Judge Dennis L. Phillips' decision. 

"When employers refuse to comply with the law, place workers' lives at risk and then lie in an attempt to avoid being held responsible, the U.S. Department of Labor will hold them accountable, including by going to trial," said Regional Solicitor of Labor Maia Fisher in Boston. "If, like Billcliff, a cited employer continues such deceptive conduct in litigation, we will use all legal tools available to deter such conduct, including seeking sanctions such as attorneys' fees and asking the judge to order a greater penalty than OSHA initially recommended."

In the absence of Billcliff's appeal, the review commission's order will be final on Dec. 13, 2023.

"Falls from heights are one of the leading causes of work-related death in the U.S.," said OSHA Regional Administrator Galen Blanton in Boston. "Employers who do not comply with fall protection requirements and place their employees at risk of deadly or disabling injuries will be cited and fined. Employers who continually do so will generally face substantially larger fines, as Billcliff has here."

OSHA's Andover Area Office conducted the inspection. The department's Office of the Solicitor in Boston litigated and tried the case for OSHA.