It seems all roofing industry news regarding the Occupational Safety and Health Administration (OSHA) is bad, but now there is something to celebrate: In April, the U.S. Court of Appeals for the D.C. Circuit drastically shortened the time period companies can be cited for OSHA reporting violations; the court reversed a decision of the Occupational Safety and Health Review Commission (OSHRC) and long-standing agency precedent.
The court was asked to determine whether OSHA can cite employers for record-keeping violations that occurred up to five years in the past (which is current practice) or whether the statute of limitations is strictly six months.
The court ruled OSHA's statute was clear and the citations were untimely, stating: "We do not believe Congress expressly established a statute of limitations only to implicitly encourage the Secretary [of Labor] to ignore it."
The facts of the case, Secretary of Labor v. AKM LLC d/b/a Volks Constructors, were as follows: In 2006, when OSHA inspected the Prairieville, La., facility of Volks Constructors, a heavy industrial contractor, OSHA fined Volks Constructors $13,300 for 67 record-keeping violations, alleging the company failed to log injuries and illnesses within the required seven-day period. The earliest such recordable injury or illness occurred Jan. 11, 2002—more than four years before the citations.
Section 9(c) of the OSH Act, 29 U.S.C. 658(c), states: "No citation may be issued … after the expiration of six months following the occurrence of any violation."
Volks Constructors appealed the citations to OSHRC, which ultimately determined the citations were timely.
The company filed suit in the D.C. circuit, arguing the statute set a clear six-month limit and employers face an undue burden trying to defend a case based on stale evidence.
The court said had the violations been ongoing "OSHA may be able to toll the statute of limitations on a continuing violations theory since the dangers created by the violations persist." The court reiterated when it comes to record keeping, the statute of limitations is six months.
The case marks a rare victory for the business community and gives roofing contractors a much-needed reprieve.
Ambika Puniani Bailey is editor of Professional Roofing and NRCA's senior director of communications.
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