Review Commission Re-Examining Stale Violation Issue

The federal Occupational Safety and Health Review Commission is re-examining whether OSHA may lawfully issue citations for recordkeeping violations that are more than 6 months old.

On Oct. 18, 2007, the Occupational Safety and Health Review Commission (OSHRC) issued a detailed briefing order in Volks Constructors, Docket No. 06-1990, in which the employer is challenging a 1993 precedent permitting citations for recordkeeping violations that are more than 6 months old. In response, the National Federation of Independent Business (NFIB) filed a friend of the court brief supporting the employer’s brief and arguing that the 1993 decision should be overruled.

In 1993, the OSHRC held in Johnson Controls Inc., 15 BNA OSHC OSHC 2132 (1993), that OSHA could issue citations for recordkeeping violations that are more than 6 months old, even though the statute of limitations in the OSH Act states, “No citation may be issued … after the expiration of six months following the occurrence of any violation.” The OSHRC in Johnson Controls stated that an uncorrected error or omission on an injury log “may be cited six months from the time the Secretary does discover, or reasonably should have discovered, the facts necessary to issue a citation.” (Emphasis added.) It explained that, “Just as a condition that does not comply with a standard … violates the Act until it is abated, an inaccurate entry on an OSHA form 200 violates the Act until it is corrected, or until the 5-year [log] retention requirement … expires.” An unrecorded case, the OSHRC reasoned, “does not differ in substance from any other condition that must be abated ... ”

The Johnson Controls therefore allowed OSHA to issue citations alleging recordkeeping violations that occurred years ago. The practical problem that this poses for employers is the difficulty of defending against stale charges as memories of details fade and witnesses become unavailable. For example, one of the record keepers for Volks Constructors died before the OSHA inspection began. The citation issued to Volks alleges violations going back to 2002. Yet, as Volks’ brief observes, the recordkeeping regulations “require a formidable number of fine distinctions.”

The problem posed by stale charges is particularly acute for small business owners, who suffer from high employee turnover. As the NFIB’s brief explained, “The likelihood that all of the employees and witnesses an employer needs to tell its story convincingly will still be working for the employer dwindles as the alleged recordkeeping violation and injury recedes into the past. … Small-business owners lack the time and resources that some large companies may have to research the whereabouts of former employees and find evidence for events that might have occurred 5 years ago.”

Will Johnson Controls Be Overruled?

The Commission in the Volks case will be reviewing two ideas raised by the Johnson Controls decision – the discovery rule and the continuing violation doctrine.

The idea in Johnson Controls that a citation is timely if issued within 6 months from the date OSHA “discovered” the violation, as opposed to the date of its “occurrence” (as the OSH Act says), usually is known as a “discovery rule.” The rule began in medical malpractice tort cases, in which surgeons negligently left sponges, tubes and clamps in patients who often did not realize that they had been wronged until after the statute of limitations had expired, leaving them with no remedy.

Soon after the Johnson Controls decision was issued, contrary decisions involving the discovery rule began to emerge from high courts. In 1994, the District of Columbia Circuit – an important court on administrative law questions, and to which any employer may appeal an OSHRC decision – held in 3M v. Browner, 17 F.3d 1453, 1460-63 (D.C. Cir. 1994), that a discovery rule may not be applied in administrative prosecutions.

Although the case involved EPA rather than OSHA and a different statute of limitations, the court’s reasoning equally applies to the OSH Act. The court observed that the rationale for the discovery rule does not apply to non-tort cases and that an agency’s failure to detect violations “does not avoid the problems of faded memories, lost witnesses and discarded documents” that statutes of limitations are enacted to avoid.

Then, in 2001, the U.S. Supreme Court in TRW Inc. v. Andrews, 534 U.S. 19, 27 (2001), stated that it recognized a discovery rule only in “an area of the law that cries out for application of a discovery rule,” such as “latent disease and medical malpractice.” Justice Antonin Scalia added that the discovery rule, when applied outside the medical malpractice field, is “bad wine of recent vintage.” And the Solicitor General of the United States, the Justice Department official who can direct OSHA’s litigation positions in the courts, stated that the TRW decision “rejected the view that ‘a generally applied discovery rule’ is implicit in federal statutes of limitations.” In sum, the discovery rule in Johnson Controls is inconsistent with controlling court decisions.

The idea in Johnson Controls that OSHA may cite a condition until it is abated often is called the “continuing violation” doctrine. But the OSHRC in its 1993 decision appears to have overlooked cases holding that a violation caused by a mere failure to act – such as a failure to have a recorded case on a log – is not covered by the continuing violation doctrine. For example, the Supreme Court had held in Toussie v. United States, 397 U.S. 112 (1970) that failing to register for the draft by a deadline is not a “continuing violation.” The Supreme Court held that the violation was complete and the statute of limitations started to run once the deadline to register was missed.

Since the issuance of Johnson Controls in 1993, the Supreme Court and other appellate courts have issued additional decisions making clear that the continuing violation doctrine does not apply unless violative acts (as opposed to passive inaction) occur within the limitations period. As one court starkly put it, “[p]assive inaction … does not support a continuing violation theory.”

The OSHRC briefing order also posed questions about the impact of new recordkeeping regulations that went into effect in 2002. Volks’ brief argues that the new regulations indicate more clearly than the former regulations considered in Johnson Controls that recordkeeping violations do not continue after the 7-day recording deadline has expired.

Given the OSHRC’s briefing order, employers who have received citations alleging recordkeeping violations that are more than 6 months old should contest the citations on the ground of untimeliness, and insist that the Supreme Court and D.C. Circuit decisions discussed in this article be followed.

Arthur G. Sapper, a contributing editor of Occupational Hazards, is a partner in the OSHA Practice Group of McDermott Will & Emery LLP. He, along with his partners Robert C. Gombar and James A. Lastowka, are on the brief submitted to the Commission on Volks’ behalf.

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