In recent years, the federal Occupational Safety and Health Administration has become more aggressive in citing employers for repeat violations when similar safety issues arise at different facilities with some business relationship to one another. For employers, repeat violations are of significant concern. Among other things, the civil penalties for repeat serious OSHA citations are ten times as much as would be the case for an initial violation.

Earlier this month, the Second Circuit Court of Appeals rejected an attempt by OSHA to assert a broad test for determining when two facilities are sufficiently related for repeat violation purposes. In Solis v. Loretto-Oswego Residential Health Ctr., the employer operated residential health care facilities. It received repeat OSHA citations based on similar previous citations received by other facilities operated by the same management company. The employer appealed the citations, contesting the assertion of repeat violations.

The Second Circuit concurred with the employer, affirming reclassification of the repeat violations. The court approved the administrative review commission's use of a standard test for relatedness, which included asking whether the two operations were separate physical facilities. OSHA argued for a new test patterned on one used by the NLRB, that focused on common management and centralized control of human resource functions.

The court rejected use of the OSHA test on procedural grounds. In dicta, the Second Circuit said that OSHA could adopt this new test in the future through a number of methods, including a rulemaking procedure. While the employer prevailed in this case, OSHA's position signals a continuing attempt to assert repeat safety citations against separate business operations with common ownership or management. Federal OSHA has computer databases in place that more easily allow investigators to search prior citations. OSHA may claim that similar violations at different facilities in different states with independent control over safety management justify repeat citations if there is some corporate relationship between the two entities.