Over the last several years, Federal OSHA has become increasingly active with “policing” state approved plans – states that develop and operate their own job safety and health programs.  Recently, Cal/OSHA has come under fire for how it classifies a repeat citation.

Currently, Cal/OSHA classifies a repeat violation as

a violation where the employer has corrected, or indicated correction of an earlier violation, for which a citation was issued, and upon a later inspection is found to have committed the same violation again within a period of three years immediately preceding the latter violation. For the purpose of considering whether a violation is repeated, a repeat citation issued to employers having fixed establishments (e.g., factories, terminals, stores . . .) will be limited to the cited establishment; for employers engaged in businesses having no fixed establishments (e.g., construction, painting, excavation . . .) a repeat violation will be based on prior violations cited within the same Region of the Division.

Cal. Code Regs. tit. 8, § 334

In short, for a fixed establishment, such as a factory, Cal/OSHA limits a repeat citation to a violation occurring only at that establishment.  For non-fixed establishments, such as construction, a repeat citation is based on prior violation occurring only within the same region.

This definition is at odds with how Federal OSHA treats a repeat citation.  Federal OSHA will issue a repeat citation if an employer has been cited previously for the same or substantially similar hazard anywhere within federal jurisdiction.  For example, if an employer is cited in New York for failing to have a forklift operator trained, that same employer is susceptible to a repeat citation for the same violation in Texas.  Currently, Federal OSHA only considers an employer’s violation history within the past five years.

Federal OSHA is pressuring Cal/OSHA to align with the federal repeat criteria and base a repeat classification off prior violations statewide.  Cal/OSHA has yet to propose regulatory language revising the definition of a repeat.  However, in an effort to solicit public comment on the timing and geographic requirements for a repeat citation, Cal/OSHA will hold a public meeting from 10:00 am to 3:00 pm on Thursday, March 13, 2014 at the Oakland State Building, 1515 Clay Street, 13th Floor, Suite 1304. 

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.

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