We’ve been following a case over the last two years about a company that has filed bankruptcy, started anew and then was hit with an OSHA repeat fine. The company says the repeat status was unwarranted because two separate employers were involved. Well, now that a court has ordered the company to pay up, guess what it’s doing?
Yep, it’s declaring bankruptcy again.
Summer and Winter Construction LLC of Concord, NH, has filed for bankruptcy liquidation.
The company also owes $18,000 in fines to the New Hampshire Department of Environmental Services for mishandling disposal of asbestos and an undetermined amount of money to the IRS.
Also listed as creditors: an insurance company and three local residents. The firm says it has less than $50,000 in assets.
Summer and Winter’s attorney blamed the situation on “a tough economy.”
Even though the company’s owner, Walter Jensen, didn’t file for personal bankruptcy, he’s been here before.
In cases such as this one, a company’s assets are sold to pay creditors at least some of the money they’re owed.
His earlier company, Sharon and Walter Construction, was formed in 1995 and filed for bankruptcy liquidation in 2004. Jensen also filed for bankruptcy reorganization in 1990 and 1994.
The $101,500 in OSHA fines are from four previous inspections:
- In 2000, OSHA cited the company for failure to provide fall protection to employees working on a roof
- In 2006, OSHA cited the company for failing to provide head protection, fall protection and adequately supported scaffolding, and
- Two inspections in 2009. Violations included improper use of anchorages for fall protection, failure to secure a hoisted load above employees, a ladder with broken rungs, lack of eye protection, unsafe use of a circular saw and incorrect use of fall arrest systems.
The company’s attorney said the fines in 2000 were against Sharon and Walter Construction which went bankrupt in 2003, and for that reason, the company shouldn’t face repeat violations for subsequent infractions. That point had been argued previously before the Occupational Safety and Health Review Commission, but the company lost.
Courts use a multi-factor test to determine whether a successor company must satisfy the obligations of a predecessor.
In this case, the type of business was the same, and there was continuity in personnel who controlled business decisions.
More hearings on this case are scheduled within the coming weeks. It’s likely OSHA will have to settle for something less than $101,500.