In a decision that can be considered a victory for employers, the U.S. Court of Appeals for the DC Circuit has denied the Secretary of Labor’s position that an employer’s failure to properly make and maintain workplace injury and illness records for the requisite five-year period under Occupational Safety and Health (OSH) Act regulations constitutes a continuing violation that tolls the six-month statute of limitations for issuing citations. The opinion in AKM LLC, d/b/a Volks Constructors v. Secretary of Labor (pdf) effectively limits the Occupational Safety and Health Administration’s (OSHA) ability to issue citations for OSH Act violations that fall outside the six-month window.

In November 2006 OSHA issued citations totaling $13,300 in fines against the employer, Volks Constructors, for allegedly failing to properly record and maintain its injury and illness logs from 2002 through early 2006. The OSH Act stipulates that “[e]ach employer shall make, keep and preserve” records of workplace injuries and illnesses “as the Secretary . . . may prescribe by regulation.” The law states also that “[n]o citation may be issued . . . after the expiration of six months following the occurrence of any violation.” Under current regulations, employers are required to record work-related injuries and illnesses within seven calendar days of the event, prepare a yearly report summarizing these events, and maintain these records for five years.

The citations at issue were assessed more than six months after the last failure-to-record incident occurred. The employer asserted that OSHA was barred by the six-month statute of limitations for issuing OSH Act citations. OSHA contended, however, that because employers have a duty to maintain injury and illness logs for five years, the statute of limitations had not yet run. Writing for the three-judge panel, Circuit Judge Janice Rogers Brown agreed with the employer that the citations were indeed time-barred.

Judge Brown explained that among other reasons for vacating the citations, an “occurrence” under the OSH Act limitations provision “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.”

Brown disagreed with the Secretary of Labor’s contention that the failure to maintain the records amounted to a continuing violation that was present the day OSHA compliance officers conducted the worksite inspection. According to Brown:

[T]he Secretary’s interpretation incorrectly assumes that the obligation to maintain an existing record expands the scope of an otherwise discrete obligation to make that record in the first place. But the two obligations are distinct: one cannot keep what never existed; a company cannot retain a record it never created.

Brown emphasized that “the mere requirement to save a record cannot possibly impose a continuing affirmative duty to correct past failures to make the record in the first place.”

The Court left open the possibility, however, for an extended citations window if the violation is truly an ongoing one. Under certain circumstances, Brown explained – such as when an employer continues to use unsafe equipment or sends untrained employees into dangerous situations – “OSHA may be able to toll the statute of limitations on a continuing violations theory since the dangers created by the violations persist.”

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