Citing Timeliness, D.C. Circuit Throws Out OSHA Citations for Recordkeeping Violations

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The Occupational Safety and Health Administration is required to issue citations for recordkeeping violations within six months of the date the employer failed to record an employee injury or illness, a federal appeals court ruled April 6, vacating citations against an employer because they were issued too late (AKM LLC v. Secretary of Labor, D.C. Cir., No. 11-1106, 4/6/12).

The U.S. Court of Appeals for the District of Columbia ruled that AKM LLC's failure to keep injury and illness logs, as required by the Occupational Safety and Health Act, was a distinct event, not a continuing violation.

In its ruling, the D.C. Circuit reversed the Occupational Safety and Health Review Commission, which had upheld an OSHA enforcement action against AKM, which does business as Volks Constructors.

The secretary of labor had argued that such recordkeeping lapses were continuing and, therefore, the company could be cited during the course of the five-year period the act requires an employer to keep such records.

“Despite the cloud of dust the Secretary kicks up in an effort to lead us to her interpretation, the text and structure of the Act reveal a quite different and quite clear congressional intent that requires none of the strained inferences she urges upon us,” Judge Janice Rogers Brown wrote for the appeals court.

Violations Cited Over Five-Year Span

OSHA issued citations to Volks on Nov. 8, 2006, following inspections at a Volks facility in Louisiana that uncovered what it said were lapses in recording injuries and illness between January 2002 and April 2006.

Altogether, OSHA fined Volks $13,300 for 67 alleged violations for having incomplete forms (29 C.F.R. 1904.29(b)(2)), 102 violations for not entering injuries in the log (29 C.F.R. 1904.29(b)(3)), and one violation each for failing to conduct a year-end review (29 C.F.R. 1904.32(a)(1)) and for allowing the wrong person to certify a year-end summary (29 C.F.R. 1904.32(b)(3)).

The date range of these violations ran from 54 months before OSHA issued its citation to six months plus 10 days. Volks moved to have the citations dismissed as untimely, citing the OSH Act at 29 U.S.C. 658(c), which says, “No citation may be issued under this section after the expiration of six months following the occurrence of any violation.”

In a 2-1 decision in March 2011, the review commission affirmed a decision by its chief administrative law judge, finding that these recordkeeping violations were continuing and, therefore, Volks was still liable (41 OSHR 237, 3/17/11).

Volks appealed to the D.C. Circuit, which held oral arguments in the matter in January (42 OSHR 81, 1/26/12).

The appellate court began its analysis by noting that the U.S. Supreme Court stated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) that courts generally defer to a federal agency's interpretation of a statute if Congress did not address the precise issue in question and, in the D.C. Circuit's words, if the agency's “interpretations are reasonable.”

In this case, the court continued, the secretary of labor was not entitled to so-called Chevron deference because the statute was clear, and the agency's interpretation was unreasonable.

Defining 'Occurrence'

The court explained that the Supreme Court has held the word “occurrence,” as used in the six-month provision of 29 U.S.C. 658(c), refers to a discrete incident, not a continuing event.

According to the court, the secretary's position was that employers are liable for recordkeeping violations beginning seven days after the failure to record, then for the five years they are required by regulation (29 C.F.R. 1904.33(a)) to keep the records, and then for an additional six months.

The court said such a reading renders 29 U.S.C. 658(c) almost superfluous.

“At best, the Secretary's approach diminishes Section 658(c) to a mere six-month addition to whatever retention/limitations period she desires,” it said. It explained that the five-year, record-retention requirement is an agency regulation, which the secretary can alter, leading to “absurd consequences.” The secretary could just as easily expand the record-retention period to 30 years. “There is truly no end to such madness,” the court said.

The court also said that flawed recordkeeping is not the type of activity that it generally considers a continuing violation. Continuing violations, the court said, generally are those that do not become clear until they are repeated, typically because the cumulative impact of such repetition is what reveals their illegality.

The OSH Act, the court concluded “clearly renders the citations untimely, and the Secretary's argument to the contrary relies on an interpretation that is neither natural nor consistent with our precedents.”

'Total Vindication'

Arthur G. Sapper, with the firm of McDermott Will & Emery, said in a statement April 6 that he was gratified that his client was completely vindicated.

“We believed all along that the statute of limitations was controlling and needed to be given greater respect than OSHA and the Review Commission had given to it,” Sapper, who argued the case both before the commission and the D.C. Circuit, said.

Two judges on the court's three-member panel, including the author of the majority ruling itself, added concurring opinions. Judge Merrick B. Garland wrote to explain the occasion when an employer could be cited five years and six months after a recordkeeping violation--when that employer failed to retain the required records for the five-year retention period.

Brown, who wrote the majority opinion, also added a concurrence to question the extent to which the federal courts must indeed defer to agency interpretation under the Chevron rule. “That we may have 'generally' deferred to an agency's interpretation of its jurisdiction in the past,” Brown wrote, “does not make it right as a rule.”

Peg Seminario, the AFL-CIO's director of safety and health, told BNA April 10, she was troubled by the decision “because it creates a situation where it's very difficult to enforce recordkeeping, which is important. That's why Congress put it in the statute.”

Seminario said that when OSHA compliance officers visit a workplace, they do not simply inspect records. They have to verify them by talking with managers and employees.

“The agency has to have a workable means of checking, and this case could make it unworkable to enforce recordkeeping,” she said.

David Sarvadi, an industry attorney with Keller and Heckman LLP in Washington, D.C., agreed with the decision, saying it “clarifies an area that has caused a lot of people a lot of trouble.”

Congress's original intent was for OSHA to be prompt in notifying an employer when there is a violation so the employer can be motivated to correct the problem, Sarvadi said.

“If you go back and read what little there is of the legislative history, one of the important provisions is that OSHA is supposed to be focused on the mediation and not on punishment,” he said. The problem with the agency's current position on recordkeeping, Sarvadi said, is that, “if you're talking about the occasional kind of lapse, then it doesn't have any impact whatsoever on safety and health.”

By David Schwartz and Stephen Lee  

The decision by the U.S. Court of Appeals for the District of Columbia Circuit in AKM LLC v. Secretary of Labor is available at

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