In a ruling that strictly limits the time frame in which employers may be cited for record-keeping violations under the Occupational Safety and Health Act (OSH Act), a federal appeals court has ruled that such violations must be cited within six months of their occurrence—a significant decrease from the previous practice of citing violations from up to five years ago.

In its April 6, 2012, decision in AKM LLC v. Secretary of Labor, the U.S. Court of Appeals for the D.C. Circuit rejected the argument of the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) that failures to record employee injury or illness constitute “continuing violations” that prevent the six-month statute of limitations from expiring until the end of the five-year document retention period.

In November 2006, OSHA cited AKM LLC, which conducts business as Volks Constructors, for myriad failures to record injuries and illnesses at its Louisiana facility between January 2002 and April 2006. None of the alleged violations, however, occurred within six months of the agency’s citations. Volks, therefore, moved to dismiss the citations based on the six-month statute of limitations in the OSH Act.

OSHA rejected this argument in a 2-1 decision in March 2011, finding that the company’s failures to create appropriate records were continuing violations and that the statutory period therefore did not expire until the end of the OSH Act’s five-year record retention requirement. Volks appealed to the D.C. Circuit, where oral arguments were held in January.

Writing for the court, Judge Janice Rogers Brown acknowledged that federal courts generally defer to agency interpretations of enabling statutes, provided that the statutory provision at issue is ambiguous and the agency interpretation is reasonable. But Judge Brown concluded that the so-called Chevron-deference—named for the U.S. Supreme Court’s seminal 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council—was inapplicable because the statute was clear in stating that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of the violation.”

The court stated that, in some instances, OSHA may be able to use the continuing violation theory to extend the statute of limitations, for example, where an employer continues to subject employees to unsafe conditions. In the Volks case, however, OSHA did not argue that such “continuing” dangers were present and instead relied on the contention that the Secretary of Labor’s authority to require employers to make and keep records created a continuing obligation that expands the applicable statute of limitations.

OSHA’s position, the appellate court said, suggested that the agency could expand the statutory period on the basis of regulations it created, such as its five-year records-retention requirement, as opposed to a limit imposed by Congress. The court found the results of this position “absurd.” It noted that, at oral argument, counsel for the Secretary of Labor, representing OSHA, conceded that if the agency’s records-retention requirement were 30 years instead of five, the Secretary’s position would allow OSHA to cite an employer for any violation during those 30 years. The court refused to accept that “Congress intended or contemplated such a result.”

Although employers should find a measure of relief in the appeals court’s ruling, they should not relax their vigilance when it comes to complying with OSHA’s workplace safety and record-keeping requirements.

Ballard Spahr attorneys regularly assist employers in ensuring OSHA compliance. If you have questions about this decision or its implications, please contact Frank A. Chernak at 215.864.8234 or chernakf@ballardspahr.com, Christopher T. Cognato at 215.864.8612 or cognatoc@ballardspahr.com, or the member of the Labor and Employment Group with whom you work. 


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