Chao v. OSHRC (Eric K. Ho)
401 F.3d 355 (5th Cir. 2005)

Facts:

  • Ho bought an old hospital and planned to develop the property as residential housing.
  • He knew there was asbestos onsite, and also knew that the materials had to be handled by those licensed with the Texas Department of Health.
  • However, Ho hired a bunch illegal Mexicans and didn’t provide them with suitable protection.
  • After not adhering to a stop-work order issued by the city inspector and accidentally causing an explosion by tapping into a gas line, OSHA smacked him with a bunch of violations.
    • Ho was also convicted of criminal violations.
  • Ho argued that he wasn’t subject to OSHO because he wasn’t engaged in business affecting interstate commerce.

Issue:
Whether Ho’s illegal asbestos abatement activities at the hospital worksite affected interstate commerce.

Holding:
Yes.

Reasoning:

  • The OSH Act applies to employers, defined as “persons engaged in a business affecting commerce who have employees.”
    • An employer comes under the aegis of the Act by merely affecting commerce; it is not necessary that the employer be engaged directly in interstate commerce.
    • This is a pretty easy burden.
  • Here, by hiring illegal immigrants, Ho specifically deprived a licensed and legitimate commercial asbestos abatement firm (Alamo) from getting the job. Thus, he affected interstate commerce.

Rule: OSHA applies to employers, defined as “persons engaged in a business affecting commerce who have employees.”