In AKM dba Volks Constructors, the U.S. Court of Appeals for the District of Columbia Circuit held that the Occupational Safety and Health Administration of the U.S. Department of Labor (OSHA) may no longer issue citations alleging that an employer failed, more than six months before, to record an employee injury. OSHA's practice was to issue citations alleging such violations so long as the five-year record retention period had not expired. In light of this decision, employers should no longer accept such citations from OSHA.
The U.S. Court of Appeals for the District of Columbia Circuit has made clear that the Occupational Safety and Health Administration of the U.S. Department of Labor (OSHA) may no longer prosecute employers for failing to record injuries where the failure occurred more than six months previously, i.e., after the statute of limitations has run. The court unanimously so held on April 6, 2012, in AKM dba Volks Constructors, No. 11-1106, rejecting OSHA's theory that the violations were "continuing." The decision rejects OSHA's longstanding practice, which had been endorsed by the Review Commission in 1993 and 2011, of issuing citations going as far back as five years—the period of time during which injury logs must be retained.
In 2006, OSHA issued a citation alleging that Volks had failed as long ago as 2002 to record injuries on its injury logs. Although the Occupational Safety and Health Act contains a six-month statute of limitations, OSHA claimed that it could prosecute Volks under a "continuing-violation" theory. It argued the violations continued until they were corrected or until the five-year retention period for the records expired. OSHA's position was upheld by the independent Occupational Safety and Health Review Commission in a sharply split 2–1 decision.
The D.C. Circuit unanimously reversed. In an emphatically worded opinion, the court held that OSHA's continuing-violation theory would "subvert" the statute of limitations. The court first held that there was no ambiguity in the wording of the statute of limitations, which states that "no citation may be issued ... after the expiration of six months following the occurrence of any violation." 29 U.S.C. § 658(a). The court stated: "Like the Supreme Court [in the Title VII case of Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)], we think the word 'occurrence' clearly refers to a discrete antecedent event—something that 'happened' or 'came to pass' 'in the past,'" quoting several dictionary definitions cited by Volks. The court noted that every unrecorded injury and every resulting failure-to-record violation alleged by OSHA "were 'incidents' and 'events' which 'occurred' more than six months before the issuance of the citations."
As to OSHA's argument that the violations "continued" until the expiration of the five-year record-retention period in OSHA's regulations, the court observed that "[a]t 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." Congress, the court observed, "does not ... hide elephants in mouseholes."
The court also rejected OSHA's argument that statutory provisions authorizing OSHA to require preservation of injury records justify an inference that Congress intended violations of record-making requirements to be treated as continuing violations. OSHA's reasoning, the court held, "is not persuasive enough to overcome the 'standard rule' that the limitations period is triggered by the existence of a complete cause of action ...," citing Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp., 522 U.S. 192 (1997), and Cherosky v. Henderson, 330 F.3d 1243, 1248 (9th Cir. 2003) ("The Supreme Court has made clear ... that the ... continuing violations doctrine should be the exception, rather than the rule"), both of which were brought to the court's attention by Volks.
The court also contrasted OSHA cases with discrimination cases, noting that it was "especially skeptical" of OSHA's argument, because a failure to keep injury records "is not even the sort of conduct we generally view as giving rise to a continuing violation ... [–] those whose 'character as a violation did not become clear until [they] w[ere] repeated during the limitations period, typically because it is only [the] cumulative impact ... that reveals [their] illegality." The recording failures, the court noted, would be "immediately apparent" to an OSHA inspector. "Without a clearer directive, we cannot presume Congress intended to depart from the general rule" of Bay Area Laundry.
The court also noted that OSHA's theory "runs afoul of our precedents." The court's previous decisions, which were cited in Volks' briefs, state "in no uncertain terms" that the "lingering effect of an unlawful act is not itself an unlawful act," and that the "mere failure to right a wrong ... cannot be a continuing wrong which tolls the statute of limitations," for if it were, "the exception would obliterate the rule."
The court did note that there might be cases in which OSHA might prevail on a continuing-violation theory, but the court's examples were limited. It mentioned current failures to place guards on machines and the current presence of untrained employees in dangerous situations. In both cases, however, a continuing-violation argument is unnecessary, because physically violative conditions actively persist into and thus "occur" during the limitations period.
Finally, the court stated that OSHA's continuing-violation theory leads to the "absurd consequence" that the limitations period "could be expanded ad infinitum if, for example, [OSHA] promulgated a regulation requiring that a record be kept ... for as long as [OSHA] would like to be able to bring an action based on that violation. There is truly no end to such madness." It noted that OSHA conceded that, under its theory, if it amended the record-retention period to 30 years (instead of the current five), it could cite employers 30 years after they failed to record. "We cannot believe Congress intended or contemplated such a result. ... Nothing in the statute suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-making violation over employers for years ...."
Judge Garland, who concurred in the judgment, wrote his own special concurring opinion, stating that OSHA's regulations "cannot reasonably be read" to impose continuing obligations. Judge Brown, who wrote the opinion for the court, also filed a concurring opinion, stating that the court should closely examine whether judicial deference to agencies' interpretations should extend to statutes of limitations.
In light of the court's decision, employers should not accept citations from OSHA that allege failures to record cases on their injury records that occurred more than six months before the citations were issued.
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