INTRODUCTION
The Occupational Safety and Health Act of 1970 (Act) is enforced by the Occupational Safety and Health Administration (OSHA), who has the duty to inspect workplaces and to issue citations if it determines that an employer is in violation of the Act. Most employers who are cited are frequently tempted to settle a citation quickly at the informal conference for a reduced penalty, rather than contest the citation. Foregoing potential factual and legal defenses for a quick and easy resolution of a citation can create a much larger risk in the future: a “repeat” citation with substantial monetary penalties. A repeat citation can carry a penalty of up to $129,336 per citation item and will continue to increase annually in line with the consumer price index. Traditionally, a repeat citation would be issued when OSHA had previously cited the employer for a “substantially similar condition” and the Occupational Safety and Health Review Commission (OSHRC) had affirmed the previous citation. Recently, a significant ruling from OSHRC increased OSHA’s evidentiary burden to prove a repeat violation. This article will discuss what constitutes a repeat citation, OSHRC’s recent decision involving a repeat citation that was favorable to employers and practical advice and best practices for minimizing the risk of a repeat citation.
WHAT IS A REPEAT CITATION?
A repeat citation is a type of violation for which OSHA may cite an employer under section 17(a) of the Act if, as the name implies, OSHA has previously cited the employer for a “substantially similar condition” and the OSHRC has affirmed the previous citation. Many employers are unaware of the nature of the various types of citations (General Duty Clause violation and/or violation of specific regulation) that can be considered “substantially similar” to be the basis for repeat citations. For example, OSHA can issue a repeat citation under the General Duty Clause or base a repeat citation on a previous violation of the General Duty Clause. In its Field Operations Manual (FOM), OSHA states that “Hazards presenting serious physical harm or death may be cited under the general duty clause (including repeated violations that would otherwise qualify as serious violations).” In addition, OSHA can base a repeat citation of a specific regulation upon a prior citation under the General Duty Clause.
For those employers with more than one facility or worksite, an alleged repeat violation can occur at any of the employer’s facilities or worksites nationwide in federal jurisdictions, regardless of where the initial citation occurred. Federal OSHA must use federal OSHA citations as the basis for a repeat citation. The FOM states that, “Prior citations by State Plan States cannot be used as a basis for Federal OSHA repeated violations. Only violations that have become final orders of the Review Commission may be considered.” OSHA maintains a national online database (which is available to the public on their website). OSHA Compliance Officers can (and do) search for citations previously issued to an employer anywhere in the nation.
While there is not any statutory time limit concerning the length of time between the date on which the repeat citation is issued and the date of the previous citation on which the repeat classification is based, set out in the Act, OSHA’s policy states that the following policy shall generally be followed:
A citation will be issued as a repeated violation if:
a. The citation is issued within five years of the final order date of the previous citation or within five years of the final abatement date, whichever is later; and
b. If the previous citation was contested, within five years of the Review Commission’s final order or the Court of Appeals final mandate.
As indicated, repeat violations can carry proposed penalties of up to $129,336. Thus, to an uninformed employer, it may appear that a harmless citation, with a nominal proposed monetary penalty, may be settled as a seemingly inconsequential matter. However, such action may lay the foundation for a subsequent repeat citation and a $129,336 penalty at any of an employer’s facilities or worksites across the nation for years to come. For this reason, informed employers who realize this potential exposure are now aggressively defending any citation that is not factually or legally valid.
WHAT OSHA TRADITIONALLY MUST SHOW TO ESTABLISH A REPEAT VIOLATION
OSHA has the initial burden of proof to demonstrate that the subsequent citation is “substantially similar” to the previous citation. The principle factor to be considered when determining whether a violation is repeated is whether the prior and instant violations resulted in “substantially similar hazards.” Therefore, OSHA can attempt to meet its initial burden merely by demonstrating that the previous and current citations allege violations of the same standard. Unfortunately, the potential employer liability can be expanded because the two citations do not have to fall under the same specific standard – OSHA can meet its burden even if the two citations allege violations of different specific standards. This issue is clearly illustrated in the case of Potlatch Corporation, which sets forth the standard in determining whether OSHA has properly classified a citation as repeat, including the following example of two citations of separate standards that would nonetheless qualify as a repeat violation:
If two employees performing construction work such as painting were exposed to a 20-foot fall from an unguarded scaffold, the employer would be in violation of 29 C.F.R. § 1926.451(a)(4); a subsequent citation based on exposure of the same employees to a 20-foot fall while using the same unguarded scaffold to replace light bulbs would be a violation of 29 C.F.R. § 1910.28(a)(3).
In addition, the employees and the scaffold described in the Potlatch example above do not have to be the same. Rather, the two citations can involve completely separate employees at completely separate facilities across the country. Thus, anytime an employer voluntarily accepts a citation, including an informal settlement, OSHA may use the citation as the basis for a repeat citation involving not only the same standard, but also any substantially similar hazard in any of the employer’s facilities anywhere in the nation.
HOW TO PROTECT YOUR EMPLOYEES AND YOUR BUSINESS
FROM REPEAT CITATIONS
In light of the recent Angelica decision, it will be much more difficult for OSHA to prove repeat citations. Traditionally, if the employer settles a citation or it becomes the final order of the Commission following litigation, it is critical to alert the employer’s management at each of its facilities or worksites across the country of each citation and the underlying hazard. Employers should take timely measures to abate the cited hazard at the cited worksite and to prevent future employee exposure to the hazard at every worksite. In addition, if the employer eventually agrees to accept a citation, the employer should attempt to have the Alleged Violation Description (AVD), which is the factual description of how the violation occurred contained in the body of the citation itself, carefully revised to limit and accurately describe the hazard to reflect the specific facts and circumstances of the hazard. This makes it much more difficult for OSHA to prove that the hazard alleged in any future citation is “substantially similar” to the hazard alleged in the prior citation.
In light of the Angelica decision, following the acceptance of a citation, employers must also take steps to establish that it acted in good faith and took effective and documented action to correct the initial violation. As there is no mechanical way to avoid a repeat citation, and the corrective actions taken will depend on the factual circumstances surrounding the citation, employers should consult experienced counsel for guidance on what constitutes abatement of the citation and how to properly document such actions.
If the employer is unfortunate enough to receive a repeat citation, it should develop a defense strategy to contest the classification of the citation as repeat; that is, that the new citation is not “substantially similar” to the prior citation. While the employer cannot defend the prior citations themselves, it must be prepared to put forward documentary and testimonial evidence to establish that the previously cited hazardous condition did not create a substantially similar hazard as alleged in the subsequent repeat citation. If these steps are taken, the employer will be prepared to argue that the prior citation was not “substantially similar” to the present citation, as well as any other legal or factual defenses that may exist to refute the subsequent citation.
CONCLUSION
When an employer receives a citation from Federal OSHA or a state agency, it must carefully consider the potential for a repeat citation prior to settling the citation for any reason. If the employer accepts a citation without undertaking the foregoing analysis, the potential liability for a repeat citation will clearly exist in the future.
Mark A. Lies, II, is a partner with the law firm of Seyfarth Shaw LLP. He specializes in occupational safety and health and related employment and civil litigation. He can be reached at 312-460-5877 or mlies@seyfarth.com. Daniel R. Birnbaum is an associate with Seyfarth Shaw. His practice focuses on both occupational safety and health and related employment and labor matters. He can be reached at 312-460-5129 or dbirnbaum@seyfarth.com.
