A recent Second Circuit ruling give OSHA increased discretion in applying the “look back” rule.
OSHA’s Field Operations Manual indicates that OSHA officials may “look back” five years when determining whether a company is a repeat violator of OSHA requirements. This is a critical determination because the penalties for repeat violations are greater than those imposed upon first-time offenders.
An article in the Construction Law Blog of the Hirschler Fleischer law office discusses whether the Manual’s look back time limit is an absolute requirement or a guideline for OSHA officials setting fines for penalty infractions.
“Prior to 2015, the Manual provided for a three-year look back period.” In 2014, an employee of Triumph Construction was injured on a jobsite in New York City when a trench excavation for a water main collapsed because the contractor failed to install the OSHA required “cave-in protection system for all excavations of five feet in depth or more.” OSHA determined that Triumph had been cited for similar violations in 2009 and 2011, and classified Triumph as a repeat offender when assessing its penalty.
Triumph filed an appeal claiming that the repeat offender assessment was incorrect because the previous citations were not within the three-year time limit stipulated in the Manual. Triumph Construction Co. v. Sec. of Labor, U.S. Second Circuit, 16-4128-ag, March 14, 2018.
The Court ruled in favor of the government concluding “that OSHA had not abused its discretion by relying on previous violations more than three years old because there is nothing in OSHA law that strictly limits the look back period to three years… The Court noted that the Manual… ’is only a guide for OSHA personnel to promote efficiency, is not binding on OSHA… and does not create any substantive rights for employers.’”
The most effective way for an employer to avoid being cited by as a repeat offender is to comply with OSHA safety requirements. Contractors who fail to do this are now on notice that the look back period does not protect them from additional fines.
Source—
Contractors Beware- OSHA “Look Back” Period for Repeat Violations May Not Be What It Seems, Hirschler Fleischer Attorneys at Law, Hirschler Fleischer Construction Law Blog, March 15, 2108.