How many years can OSHA look back to consider if a violation should be categorized as repeat and therefore carry a higher fine?
Turns out, there may not be a time limit, according to a recent federal court ruling.
On Aug. 22, 2014, an employee of Triumph Construction Corporation was injured at an excavation site cave-in, in Manhattan.
OSHA issued Triumph a citation for violating its excavation reg that says:
“Each employee in an excavation shall be protected from cave-ins by an adequate protective system … except when: excavations are made entirely in stable rock; or excavations are less than 5 feet in depth and examination of the ground by a competent person provides no indication of a potential cave-in.”
OSHA categorized the violation as repeat because it had cited Triumph for the same violation twice before: in 2009 and 2011.
Triumph contested the violation to the Occupational Safety and Health Review Commission. An administrative law judge affirmed the repeat citation. The OSHRC didn’t review the case, so the decision became a final order of the Commission. The U.S. Second Circuit recently heard an appeal by Triumph.
The company argued the Commission had a policy of using a three-year look-back period to determine whether a violation should be categorized as repeat. The most recent Triumph violation of the excavation regulation was more than three years old.
Triumph noted that the OSHA’s Field Operations Manual for its inspectors that was in effect at the time of the citation called for a three-year look-back period.
This is what the manual said:
“Although there are no statutory limitations on the length of time that a prior citation was issued as a basis for a repeated violation, the following policy shall generally be followed. A citation will be issued as a repeated violation if … the citation is issued within 3 years of the final order date of the previous citation of within 3 years of the final abatement date, whichever is later.”
The Second Circuit found it was OK for the Commission to consider previous violations that were more than three years old. The manual noted there were no statutory limitations and the three-year period should be “generally” followed. The manual isn’t binding on OSHA or the Commission.
The willful citation for the excavation violation stands, along with a $25,000 fine.
Reminder: Willful violations can cost up to ten times the amount for a serious citation. The maximum for a willful violation is $126,749. The top amount for a serious violation is $12,675. One more reason to prevent employee injuries that could OSHA to your door.
(Triumph Construction Corp. v. Secretary of Labor, U.S. Circuit Crt. 2, No. 16-4128-ag, 2/14/18)
