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Elephants in Mouse Holes: OSHA Record Keeping Citations Barred After Six Months

5/28/2012 | Construction Blog

In what could be seen as a far reaching decision, the United States Court of Appeals for the District of Columbia recently held a firm line in enforcing a 6 month statute of limitations for on-site injury record keeping violations under 29 C.F.R. ยง 657. The decision – a significant one for those in the construction business – was a firm reminder to the Department of Labor about the principals of separation of powers and its limited power to enforce safety at the project.

On a prior occasion, the United States Supreme Court stated: “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions – it does not, one might say, hide elephants in mouseholes.” Invoking this thinking, the Court in AKM, LLC, d/b/a/ Volks Construction v. Secretary of Labor, (D.C. Cir.; April 6, 2012), strictly interpreted the statute of limitations for record keeping violations and vacated over 170 OSHA citations issued against Volks.

The Occupational Safety and Health Act requires that employers keep and save records of workplace injuries and illnesses “as the Secretary may prescribe”. Pursuant to this law, the Department of Labor has issued regulations requiring employers to record information about work related injuries by (1) preparing a log and report within 7 days of the injury, (2) preparing and certifying a year end summary of all recorded injuries in the log, and (3) saving all of these records for 5 years. Each of these are separate obligations that can result in separate citations if they are not performed.

In May 2006, OSHA began an inspection of the records of Volks. In so doing, it cited Volks over 170 times for violating these regulations. The alleged violations took place between 2002 and early 2006. None of the citations, however, were issued less than 6 months after the regulation was violated (i.e. the recording requirement was triggered by an injury and it was not recorded in the log). Accordingly, Volks challenged the citations and had them ultimately dismissed because they were issued more than 6 months after each violation actually took place.

The Secretary of Labor argued that she was entitled to deference as the agency charged with making and enforcing the regulations under the Supreme Court’s holding in Chevron U.S.A., Inc. v. Natural Resources Defense Council. She also argued that the limitations period did not begin to run until after the expiration of the 5 year retention requirement and that the violations were continuing for as long as Volks failed to remedy the problem by creating these logs.

The D.C. Court of Appeals disagreed that deference was owed because Congress had clearly stated its will in establishing a 6 month statute of limitations. It also rejected the extension of the limitations period to 5 years plus 6 months on similar grounds and refused to adopt the continuing violation argument as an absurd result contrary to past precedent.

The Court relied heavily on the language of the statute, which stated that “no citations may be issued … after expiration of six months following the occurrence of any violation“. It cited prior Supreme Court opinions in which it was concluded that the term occurrence, by definition, clearly refers to a definite prior event that came to pass. It could be an action or inaction. The time period is clearly defined to be 6 months after the record should have been created, and to extend it, as the Department of Labor’s interpretation would accomplish, would allow the Department to arguably set the limitations period at any length and extend it indefinitely. The Court would not allow an administrative agency this kind of power.

This is an important decision for construction employers. Proper OSHA records should be kept, as it is a good business practice for many reasons. This being said, OSHA is not always able to complete its reviews and audits as quickly as it would like due to personnel and time restrictions. Because the window of liability for citations on record keeping violations is now more clearly defined and enforceable, there may be a defense to citations that were harder to challenge in the past.