D.C. Circuit Disapproves Of Continuing-Violation Theory In OSHA Recordkeeping Cases

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'...