The Occupational Safety and Health Review Commission has issued an important decision that will help determine what is and what isn’t a repeat OSHA violation.
OSHA issued five citations to Loretto-Oswego Residential Health Care Facility in Oswego, NY. Two of the citations were characterized as repeat because other Loretto facilities elsewhere in New York had been cited for similar violations.
Loretto didn’t contest the violations themselves. The only point of disagreement was whether or not they should be more expensive repeat citations. If found to be repeats, the fine would be $56,250, and if not, $11,250.
Commission precedent held that “related employers are regarded as a single entity where … they share a common worksite, have interrelated and integrated operations, and share a common president, management, supervision, or ownership.”
There was some commonality between the different Loretto locations. They shared the same president, CEO and CFO.
However, the Commission found the different locations didn’t share integrated operations. Administrative personnel at Loretto Oswego operated independently of the parent company.
Loretto Oswego personnel, not employees of the parent company, were primarily responsible for safety at the facility. Loretto Oswego had its own safety committee and handled safety orientation for new employees.
One more factor: The parent company had no physical presence at Loretto Oswego. Executives were at another location.
The Commission found OSHA didn’t show the facilities qualified as having a single-employer relationship, so the citations should not be characterized as repeat.
In another recent ruling, the Commission said two companies were in fact the same entity and upheld a repeat violation.
What’s the difference? In the earlier case, a company had filed for bankruptcy, and then the same owners established a new company which was essentially the same as the old one. The Loretto case addresses different facilities that are under the same parent company.
OSHA has been issuing more repeat violations in recent years based on similar violations at different locations. Time will tell how the decision in the Loretto case will impact those situations.
Secretary of Labor v. Loretto-Oswego Residential Health Care Facility, OSHRC docket nos. 02-1164 and 02-1174, 1/7/11.
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