Many employers who receive OSHA citations feel the agency has piled on multiple citation items for a single alleged violation. Daniel Flynn writes that this can cost employers up to $12,934 for each "Serious of Other-Than-Serious" citation and up to $129,336 for each "Repeat of Willful" citation. However, the organization's review commission tends to discount many citations which pile on for a single violation.
The Occupational Safety and Health Review Commission tends to disfavor duplicative citations, which has been fortunate for employers seeking to establish a duplicative citation defense. The Secretary of Labor, however, is attempting to restrict the availability of the defense.
According to Flynn, OSHA's long-standing precedent has been that "violations may be be found to be duplicative where the standards cited require the same abatement measures, or where abatement of one citation item will necessarily result in abatement of the other item as well." However, the Secretary of Labor is attempting to advocate for a multi-factor and fact-based test containing the following elements:
- The conditions giving rise to the violations are the same or very similar;
- The two standards violated are closely related sister standards;
- The two violations occurred on the same date and at the same location, and the facts supporting both violations are the same;
- The same employees were exposed to the hazards involved in the two violations; and
- Compliance with one standard would ordinarily presuppose or substitute for compliance with the other, and the same abatement would abate both violations.
Flynn said, if adopted, this test would make it easier for OSHA to issue multiple citation items for single events or conditions. He suggests that employers should be mindful of the pending appeal and the possibility that a more stringent test for estalbishing duplicative items could be on the horizon.
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