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The Appellate Court Declared OSHA Has No Limit on the Look-Back Period for Repeat Citations—and That’s a Big Deal


he U.S. Congress created mul- tiple classifications of citations that may be issued to employ- ers who violate the Occupational Safety and Health Act of 1970 (OSH Act), or any regulation, standard, or order under the act. Te four primary classifications are: willful, repeat, seri- ous, and other than serious. While every citation is important and affects an employer’s business and operations, the most impactful are willful and repeat, as these classifications carry a maximum penalty ten times that of serious or other than serious, and have other business and legal ramifications. By definition, repeat citations signify an employer is a repeat offender of health and safety standards, though that connotation is often unfair. Repeat citations may impact labor relations, disqualify contracts with cus- tomers and vendors, and lead to higher insurance premiums. Te OSH Act specifically states

any employer who “repeatedly” violates the Act may be issued a citation and assessed a civil penalty. Te OSH Act, however, is woefully vague in that it fails to define “repeatedly.” As a result, the repeat classification has been the subject of much interpretation and litigation over the years. Te focus of this article is on how the courts and the Occupational Safety and Health Review Commission have interpreted the repeat classification, and more specifically on a recent decision of the U.S. Court of Appeals for the Second Circuit,Triumph Construction Corpo- ration v. Secretary of Labor (Docket No. 16‐4128‐ag, March 14, 2018) (“Triumph”), in which the Appellate Court significantly expanded the scope of the repeat classification. Te Appel- late Court held that the Occupational Safety and Health Administration

52 | MODERN CASTING May 2018

(“OSHA”) is not bound by any look- back period on which to base a repeat citation.

Background of the Repeat Classification

To date, neither the courts nor the

commission have articulated a uniform test regarding what constitutes a repeat violation. Given the vagueness of the OSH Act, the four major inquiries are: 1) Is a single previous violation sufficient predicate for a repeat violation, or are no less than two previous violations necessary?

2) Can a predecessor or affiliated compa- ny be considered the same employer for purposes of a repeat violation?

3) How related in substance and location must the earlier violations be to the current violation?

4) How related in time must the earlier violations be to the current violation. The Triumph case addresses this fourth inquiry. Regarding the first inquiry, the

drafters of the OSH Act specifically used the term “repeatedly” rather than “repeated,” which implies that a repeat citation would be based on multiple prior violations. OSHA, not surprisingly, disagrees and has consistently issued repeat citations based on only a single prior viola- tion. The courts and commission have agreed with OSHA’s viewpoint, holding that a single violation is suf- ficient to support a repeat violation. Regarding the second inquiry, the

courts and the commission have issued multiple decisions over the years, hold- ing that an employer may be subject to a repeat citation based on prior cita- tions issued to corporate predecessors and affiliates, depending on a number of factors. Every situation must be assessed on a case-by-case basis, but

employers whose corporate predeces- sors have substantial continuity in the nature of the business, jobs and work- ing conditions, and safety personnel may be vulnerable to a repeat citation. Similarly, employers whose affiliates have a common worksite, common management, and close integration of operations may also be vulnerable. Regarding the third inquiry, the

courts and the commission have issued multiple decisions regarding how similar a prior violation and the current alleged violation must be to justify a repeat citation. Every situa- tion must be assessed on a case-by- case basis, as this typically is a com- plex factual question with shifting burdens of proof between OSHA and the employer. However, an employer is at risk of receiving a repeat citation if the prior citation was “substan- tially similar” to the current alleged violation. Some of the factors to consider include, but are not limited to: whether the prior violation was based on the same OSHA standard, a related standard, or the General Duty Clause; whether the prior violation involved the same equipment, similar equipment, or unrelated equipment; whether the prior violation involved the same personnel, different person- nel in the same employment category, or unrelated personnel; and whether the prior violation took place at the same facility, a different facility with similar operations, or an unrelated facility. In states governed by federal OSHA, OSHA may issue a repeat ci- tation based on prior citations issued to the employer’s facilities located in any other federal OSHA state.

The Appellate Court’s Expansion of the Repeat Classification

In Triumph, the Appellate Court

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