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
Sapper, Arthur G., Occupational Hazards
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. …