The year 2018 saw the issuance of several noteworthy federal
workplace safety and health decisions. Three of those decisions
came in the cases of Secretary of Labor v. Angelica Textile
Services, Inc.;
United States v. Mar-Jac Poultry, Inc.; and Acosta v.
Hensel Phelps Construction Co.
In Angelica Textile Services, the Occupational Safety
and Health Review Commission clarified and reaffirmed the standard
of proof for "repeated" violations: that an employer may
rebut the Occupational Safety and Health Administration's
(OSHA) case of "substantial similarity" by showing (1)
that the "conditions and hazards associated with [both]
violations" were "disparate" or (2) that the
employer "actively sought out and eliminated similar
hazards" after the first violation. Previously, merely showing
that an employer had been cited a second time under the same
standard seemed, according to OSHA anyway, to meet its burden of
proof. In short, OSHA had watered down the measure
