In AKM, L.L.C. v. Secretary of Labor, the District of Columbia Court of Appeals ruled that OSHA may only issue citations no more than six months following a violation. OSHA cited and fined AKM, a construction company, for failing to properly record workplace injuries and for failing to properly maintain its injury log over a four year span. OSHA requires non-exempt employers to prepare an incident report and separate injury log within seven days of a recordable workplace injury and to provide a year-end summary of all recordable workplace injuries. OSHA requires employers to keep such records for five years. During a May 2006 inspection, OSHA determined that AKM had not been diligent in completing its recordkeeping requirements from January 2002 to April 2006. In November of 2006, over six months after the last unrecorded injury occurred, OSHA issued AKM nearly 200 citations and a total of $13,300 in penalties.

AKM objected to the citations, stating that they were issued after the six month statute of limitations requiring citations to be issued within “six months following the occurrence of any violation.” OSHA asserted that the six month statute of limitations did not apply because the citations were issued for “continuing violations” which prevent the statute of limitations from expiring until the end of the five year record retention period. Essentially, OSHA asserted that there should be a five year statute of limitations for recordkeeping violations.

Disagreeing with OSHA, the Court ruled that the statute unambiguously states that no citation may be issued more than six months following any violation. The Court stated Congress clearly intended a six month statute of limitations. The Court also stated that OSHA’s recordkeeping statutes and regulations do not authorize the five year statute of limitations proposed by OSHA.

The Court, however, did not limit OSHA’s ability to issue a citation for a “continuing violation” where, for example, an employer continued to subject its employees to unsafe machines or to send its employees into unsafe situations without proper training.

If you have any questions or concerns regarding OSHA’s recordkeeping requirements or citations, contact our labor and employment group.

By Kenneth T. Short, kshort@dsda.com