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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

Darren Hunter

The U.S. Congress created multiple classifications of citations that may be issued to employers who violate the Occupational Safety and Health Act of 1970 (OSH Act), or any regulation, standard, or order under the act. The four primary classifications are: willful, repeat, serious, 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 customers and vendors, and lead to higher insurance premiums.

The OSH Act specifically states any employer who “repeatedly” violates the Act may be issued a citation and assessed a civil penalty. The 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. The 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 Corporation 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. The Appellate Court held that the Occupational Safety and Health Administration (“OSHA”) is not bound by any look-back period on which to base a repeat citation.

Background of the RepeatClassification  
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 company 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 violation. The courts and commission have agreed with OSHA’s viewpoint, holding that a single violation is sufficient to support a repeat violation.

Regarding the second inquiry, the courts and the commission have issued multiple decisions over the years, holding that an employer may be subject to a repeat citation based on prior citations 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 predecessors have substantial continuity in the nature of the business, jobs and working 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 situation must be assessed on a case-by-case basis, as this typically is a complex 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 “substantially 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 personnel 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 citation 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 addressed whether OSHA is limited in the period of time on which it may “look back” at prior violations to assess whether it may issue a repeat citation. Although the OSH Act does not contain any limitations on the look-back period, OSHA has issued a guidance document known as the Field Operations Manual, in which OSHA stated that the look-back period for repeat violations was three years. In 2016, OSHA amended the Field Operations Manual, expanding the look-back period to five years. Given that the OSH Act was silent on the look-back period, employers reasonably relied on OSHA’s own guidance to assess whether it may be subject to a repeat citation based on a prior violation. That all changed with the Appellate Court’s decision in the Triumph case.

The employer in Triumph received a citation in 2009 and another citation in 2011 for violating the same excavation standard. In 2015, more than three years after OSHA issued the previous citations, but before OSHA expanded the look-back period to five years in its amended Field Operations Manual, OSHA issued another citation to the employer for violating the same excavation standard and classified the violation as repeat based on the prior citations. The employer argued OSHA was bound by the three-year look-back period set forth in the manual. The commission and Appellate Court disagreed, holding the OSH Act does not contain any temporal limitation on the look-back period, and that the manual was only a guidance document that did not bind OSHA. In affirming the repeat citation issued to the employer, the Appellate Court did not place any temporal restriction on the look-back period.  

The Appellate Court’s decision is instructive and, from an employer’s perspective, troubling. While the law has always been clear that guidance documents are not binding on either the governmental agency or the entities subject to regulation by that agency, parties have always felt a sense of comfort that they operated in compliance with the law if they operated in compliance with the agency’s guidance document. In OSHA matters, employers may still rely on OSHA interpretations set forth in its various guidance documents, particularly to establish good faith and intent, and employers may still argue that they operated in compliance with such OSHA standards in a contested case. The Triumph case, however, is a harsh lesson to employers that compliance with guidance documents does not necessarily establish compliance with the law.  

In theory, OSHA can issue a repeat citation to an employer based on a violation that occurred in the 1970s, but in practice OSHA does have certain restraints. As a generalization, it will be difficult for OSHA to establish how a violation that occurred in the distant past was substantially similar to a current violation. Still, OSHA will likely push the envelope and issue repeat citations based on prior violations that occurred more than five years in the past, particularly when OSHA believes it can establish substantial similarity.  

As employers are now on notice that OSHA has no temporal limitation to the look-back period, employers should give serious consideration to fighting smaller citations. In the past, employers have routinely settled citations with modest monetary penalties because the time and expense of litigation did not justify a prolonged fight with OSHA. That business justification for settling smaller citations may no longer apply, as employers are now subject to a maximum penalty of $129,336.00 for each repeat citation, as well as other business implications that come with repeat citations.

Click here to see this story as it appears in the May 2018 issue of Modern Casting