Thanks to a recent federal appellate court decision, OSHA now has even more leeway to issue costly repeat citations to employers. As many employers know, there are different classifications for civil violations of OSHA regulations, including other-than-serious, serious, repeat, and willful. Penalties, both monetary and non-monetary, increase with higher classification levels. OSHA recently increased the maximum penalty for repeat violations to $129,336, and additional increases to the maximum penalty are expected.
Employers can be cited for “repeat” violations if the employer has previously been cited for the same or a substantially similar violation. Prior to 2015, OSHA’s stated policy and practice was to look back only three years to determine whether a repeat violation was warranted. In 2015, OSHA increased the look-back period to five years. However, on February 14, 2018, a federal appellate court gave OSHA unlimited latitude to search employer citation histories as far back as necessary to establish repeat violations.
In Triumph Construction Corporation v. Secretary of Labor
, OSHA issued a repeat citation to Triumph for violating an excavation standard. OSHA determined that a repeat citation was appropriate because Triumph had previously been cited for violating the same excavation standard in 2009. Triumph fought the repeat classification by arguing that it was contrary to OSHA’s stated policy in 2014 (when the citation was issued) that it would look back only three years to determine whether a repeat citation was warranted. The Triumph
Court, however, held that because neither the OSH Act nor its regulations prescribe any time limitation for the look-back period, OSHA is not bound by its stated policy and can, in its sole discretion, search employer citations as far back as necessary to determine what constitutes a “repeat” violation.
What does this mean for employers? Since paying a serious or other-than-serious citation today may lead to a repeat citation tomorrow (and potentially several years later), employers must seriously consider not only immediate risks but also future risks associated with simply accepting OSHA citations. While paying a small OSHA penalty today may seem insignificant, doing so potentially increases an employer’s future risk of receiving a repeat citation. In addition to the potential $129,336 maximum monetary penalty, each repeat citation also carries the potential for increased insurance and bond premiums, disqualification from government and private contracts, and other business opportunity risks and losses. Given these costly consequences, employers should seek legal counsel and consider whether to request an informal conference with OSHA or to contest citations before the Review Commission.
For more information, contact Frantz Ward OSHA certified attorney Christina Niro