Employers rely on OSHA’s Field Operations Manual (FOM) to better understand how OSHA inspectors will review workplace compliance, identify violations, issue citations, and propose penalties. But is OSHA actually legally bound to adhere to the procedures and standards described in the FOM? Apparently not, according a panel of the U.S. Court of Appeals for the 2nd Circuit, at least in the area of time limits for determining if a violation is a repeat violation.
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The case heard by the court (Triumph Construction Corporation v. Secretary of Labor) originated in August 22, 2014, when an employee of Triumph, the general contractor for a public construction project to replace certain water mains, was injured in a cave-in at an excavation site in lower Manhattan. An OSHA officer inspected the excavation site that afternoon. Nearly 6 months later, OSHA issued Triumph a citation for not providing required protections to workers in excavations more than 5 feet deep. Moreover, the citation was classified as a repeat violation based on two previous citations issued to Triumph for violating the same excavation standard—the first in 2009, the second in 2011.
Enhanced Civil Penalty
Triumph contested the citation before an administrative law judge, who found in OSHA’s favor both regarding the depth of the excavation and the occurrence of a repeat violation. The Occupational Safety and Health Review Commission affirmed OSHA’s classification of the violation as repeat and its assessment of a $25,000 penalty. The Occupational Safety and Health Act authorizes an enhanced civil penalty against any employer that repeatedly violates any standard under the statute.
According to Triumph, the Commission has a policy of using a 3-year look-back period to determine a repeat violation. Also, argued Triumph, the Commission provided no explanation as to why it was here applying a longer lookback. Furthermore, Triumph contended that the 2011 FOM, which was in effect at the time of the February 13, 2015, citation, dictates a 3-year lookback period for assessing repeat violations—not the 5-year period relied on by the Commission.
FOM Is a Guide Only
The 2nd Circuit panel quotes from the 2011 FOM as follows:
“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 … [t]he citation is issued within 3 years of the final order date of the previous citation or within 3 years of the final abatement date, whichever is later.”
The panel concluded that neither the Commission’s precedent nor the FOM bound OSHA to a 3-year lookback period. Referencing a previous case, the panel explains that the FOM is only a guide for OSHA personnel to promote efficiency and uniformity; it is not binding on OSHA or the Commission and does not create any substantive rights for employers.
Accordingly, the panel issued a summary order finding that Triumph’s petition for review was without merit.
OSHA updated the FOM in August 2016 and changed the lookback time period for repeat violations from 3 years to 5 years. However, based on the 2nd Circuit’s summary order, OSHA is no more bound to 5-year lookback mentioned in the update than it was to the 3-year lookback in the previous FOM.
The panel’s summary order is available here.