Hunton Employment & Labor Perspectives

Last week, the U.S. Court of Appeals for the D.C. Circuit significantly limited the time period in which employers may be cited for recordkeeping violations under the Occupational Safety and Health Act (“the Act”) in AKM LLC dba Volks Constructors v. Secretary of Labor, Civ. No. 11-1106.  The Court ruled that such violations must be cited within six months of their occurrence, marking a considerable decrease from the previous practice of citing violations from up to five years prior--the period of time during which injury and illness logs must be retained under the Act.  In doing so, the federal appeals court rejected the independent Occupational Safety and Health Review Commission’s decision upholding an enforcement action against Volks Constructors and the Occupational Safety and Health Agency’s (“OSHA”) argument that Volks’s failure to keep injury and illness logs constituted continuing violations.

In November 2006, OSHA cited Volks Constructors for a number of recordkeeping violations, including the failure to record injuries and illnesses as far back as January 2002 and as recently as April 2006.  Though the Act has a six-month statute of limitations, OSHA asserted that the recordkeeping violations were “continuous” and thus could be prosecuted until they were corrected or the five-year limitations period for keeping the records expired. 

Volks moved to dismiss the citations under the six-month limitations period in the Act, asserting that each violation was discrete.  The Occupational Safety and Health Review Commission rejected Volks’s argument by a 2-1 margin, determining that the recordkeeping lapses were continuing, and therefore that the company could be cited for lapses at any point during the required five-year retention period. 

Volks appealed this decision to the D.C. Circuit.  The D.C. Circuit unanimously reversed the Commission’s decision, holding that there was no ambiguity in the wording of the Act’s statute of limitations, which states that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of the violation.”  29 U.S.C. § 658(a).  Judge Janice Rogers Brown, writing for the Court, acknowledged that while federal courts typically defer to agency interpretations of enabling statutes, they do so when the statutory provision is ambiguous and the agency’s interpretation is reasonable.  In this case, however, the Court found that the statute was clear, and the agency’s interpretation was unreasonable. 

The Court explained that the statute’s statement that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of the violation” clearly refers to a “discrete antecedent event—something that ‘happened’ or ‘came to pass’ ‘in the past.’”  Brown stated that in the case at hand, “every single violation for which Volks was cited—failures to make and review records—and every workplace injury which gave rise to those unmet recording obligations were ‘incidents’ and ‘events’ which ‘occurred’ more than six months before the issuance of the citations.”

In response to OSHA’s argument that the violations were “continuing” and thus could be cited until the five-year record retention period expired, the Court determined that “at best” this “approach diminishes [the limitations period] to a mere six-month addition to whatever retention/limitations period [OSHA] desires.  We do not believe Congress expressly established a statute of limitations only to implicitly encourage [OSHA] to ignore it.” 

Finally, the Court stated that OSHA’s continuing violation theory leads to an “absurd consequence,” since the Secretary of Labor could easily expand the record retention period to 30 years and bring enforcement actions for violations at any point during that period.  “There is truly no end to such madness,” the Court wrote.

In light of this decision, OSHA citations alleging failures to record injuries or illnesses occurring more than six months before the citations are issued are no longer enforceable.