Occupational Safety and Health Review Commission Issues Decision on Time Limits for Recordkeeping Violations
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On March 11, 2011, the Occupational Safety and Health Review Commission issued a decision which addressed the question of when an “occurrence” of a regulatory violation happens for the purpose of determining whether it issued a citation within the statute of limitations.
At issue were five OSHA citations finding that Volks Constructors violated certain recordkeeping requirements at its facility located in Prairieville, Louisiana. OSHA cited the employer for numerous incidents of failing to maintain injury-and-illness records on OSHA Form 300 logs and Form 301 incident reports. The inspections took place between May and November 2006, leading OSHA to conclude that the employer failed to record 67 work-related injuries or illnesses at the site between August 2002 and April 2006. The employer did not contest that it failed to keep adequate records, but argued that the OSHA citations were too late.
Section 9(c) of the OSH Act states that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.” None of the injuries or illnesses that the employer failed to log had occurred within six months of OSHA’s inspection and some had occurred almost five years earlier.
It was undisputed that the Secretary of Labor issued the citations than six months after the recordkeeping duties at issue initially arose. The Secretary argued that the citations were timely because the violations continued during the five-year retention period prescribed by the recordkeeping regulations. Volks argued that these violations were one-time events that were not continuing, and that the citation could not be considered timely on the basis of the “discovery rule.”
The Commission affirmed four of the citations as timely and vacated a fifth citation as time-barred. The Commission cited as controlling its decision in Johnson Controls, Inc., 15 BNA OSHC 2132, 1991-93 CCH OSHD ¶ 29,953 (No. 89-2614, 1993), where OSHA issued a citation for a recordkeeping violation more than six months after the employer erroneously deleted the entry of an employee’s elevated blood lead level from its illness and injury log. In Johnson Controls, the Commission held that “it is of no moment that a violation first occurred more than six months before the issuance of a citation, so long as the instances of noncompliance and employee access providing the basis for the contested citation occurred within six months of the citation’s issuance.” The Commission emphasized that it has explicitly held that, unlike other federal statutes in which an overt act is needed to show any violation, the OSH Act penalizes both overt acts and failures to act in the face of an ongoing, affirmative duty to perform prescribed obligations.
Next, the Commission rejected Volks’ argument that Johnson Controls has been undermined by intervening precedent from the Supreme Court and various courts of appeals. Specifically, Volks argued that the citation items were time-barred because they were not issued within six months of any “discrete, violative act.” The Commission found each line of cases cited by Volks to be distinguishable. With regard to Volks’ argument that, under the discovery rule, OSHA could not issue a citation for a recordkeeping violation more than six months after the close of the seven-day period, the Commission found that the discovery rule was irrelevant, since the Secretary did not claim that the discovery rule enabled her to cite Volks more than six months after the violations first occurred. “Rather, the timeliness of the citation at issue here is predicated solely on the continued existence of the violations throughout the five-year retention period, which means that OSHA did, in fact, issue the citation within six months of the occurrence of the recordkeeping violations.”
The fifth citation, which the court did vacate as time-barred, was for the employer’s failure to post an annual summary for the full time period required by 29 C.F.R. § 1904.32(b)(6). This regulation sets out a “date certain (April 30th) by which the posting of the annual summary may come to an end.” The Commission found that regulation’s plain language imposed a duty to post the summary for only a specified time period, and the Secretary failed to issue a citation within six months of the last day of that specified period. Thus, the citation was untimely.