On April 6, 2012, the US Court of Appeals for the DC Circuit issued a decision in AKM LLC v. Secretary of Labor. The key issue was whether the statute of limitations for recordkeeping violations is the six-month limitations period in the Occupational Safety and Health Act (OSH Act) or the five-year record retention requirement plus the six-month limitations period.

On May 10, 2006, OSHA inspected Volks Constructors and discovered it had failed to properly record certain workplace injuries and illnesses. On November 8, 2006, OSHA issued multiple citations to Volks for its failure to properly:

OSHA did not cite Volks for a failure to maintain injury and illness records for the five-year record retention period required by the OSHA regulations. Volks moved to dismiss the citations as untimely because:

The OSHA administrative law judge affirmed the citations and Volks appealed to the Occupational Safety and Health Review Commission (Review Commission). After noting that it was undisputed the citations were issued for violations more than six months after the recordkeeping duties at issue initially arose, the Review Commission upheld four of the five citations, agreeing with the Secretary of Labor's argument that the citations were timely because the violations continued during the five-year retention period and therefore were still occurring when the inspection began. Volks petitioned the DC Circuit for review.

The DC Circuit held the recordkeeping citations were untimely and vacated them.

According to the court, the text of the OSH Act is clear and provides that "no citation may be issued ... after the expiration of six months following the occurrence of any violation." Every single violation for which Volks was cited and every workplace injury which gave rise to the unmet recording obligations were incidents and events that "occurred" more than six months before the issuance of the citations.

The Secretary of Labor had argued that recordkeeping violations continue every day that a recordkeeping requirement remains unsatisfied. Since OSHA's regulations require an employer to retain records for five years, the Secretary of Labor claimed the effective statute of limitations is five years and six months, the length of the record retention period plus the OSH Act's statute of limitations.

According to the court, an "occurrence" under the OSH Act is a discrete event occurring in the past. OSHA may cite an employer within six months of the employer either:

The court noted that in this case, OSHA did not cite Volks for losing or destroying a record that existed, but only for failing to create a record. Since the citations were issued more than six months after the improperly recorded injuries, the citations were untimely. The court also noted that the Secretary of Labor could have argued to the court that the statute of limitations be read to incorporate a discovery rule if she felt that the statue of limitations period is too short.

In addition, the court found the Secretary of Labor's interpretation of the OSH Act and the regulations unreasonable, as it:

The court noted that OSHA may be able to toll the statute of limitations on a continuing violations theory, where, for example, an employer continues to subject its employees to unsafe machines.

This decision overrules a Review Commission decision that dramatically increased employers' exposure to OSHA recordkeeping citations and fines, and it reaffirms that OSHA may not issue recordkeeping citations more than six months after a violation has occurred.

For more information on OSHA recordkeeping requirements, see Practice Note, OSHA Injury and Illness Recordkeeping and OSHA Injury and Illness Recordkeeping Checklist.