OSHA denied expanded statute of limitations on record-keeping violations

By Howard Rubin and Don Stait

The Daily Record Newswire

Employers can heave a collective sigh of relief following a recent federal court decision. The D.C. Circuit Court of Appeals in Washington, D.C., denied the Secretary of Labor's position that an employer's failure to create and maintain workplace injury records for five years constitutes a continuing violation that tolls the six-month statute of limitations for issuing citations.

The opinion effectively limits the Occupational Safety and Health Administration's ability to issue citations for Occupational Safety and Health Act violations that fall outside the six-month window.

In November 2006, OSHA issued citations totaling $13,300 in fines against Volks Constructors for allegedly failing to properly record and maintain its injury and illness logs from 2002 through early 2006. The act states that "no citation may be issued ... after the expiration of six months following the occurrence of any violation." Because none of the accidents or injuries had occurred within six months of issuance of the citations, the employer asserted that OSHA was acting too late to issue the citations.

Under current regulations, employers are required to record work-related injuries and illnesses within seven calendar days of the event, prepare a yearly report summarizing these events, and maintain these records for five years. Although none of the events alleged in the citation occurred within six months of issuance of the citations, OSHA took the position that the six-month statutory period did not begin until the five-year record-retention period ended. The court disagreed.

Writing for a three-judge panel, Circuit Judge Janice Rogers Brown agreed with the employer that the citations were time-barred, and held that OSHA's continuing-violation theory would "subvert" the statute of limitations. The court held that there was no ambiguity in the wording of the statute of limitations.

As to OSHA's argument that the violations "continued" until expiration of the five-year record-retention period in OSHA's regulations, the court observed that "this approach diminishes (the limitations period) to a mere six-month addition to whatever retention/limitations period (OSHA) desires. We do not believe Congress expressly established a statute of limitations only to implicitly encourage (OSHA) to ignore it." Congress, the court observed, "does not ... hide elephants in mouse holes."

The court left open the possibility, however, that the citation window could be expanded if the violation were truly ongoing. Under certain circumstances (such as when an employer continues to use unsafe equipment or sends untrained employees into dangerous situations), Brown noted, "OSHA may be able to toll the statute of limitations on a continuing violations theory since the dangers created by the violations persist."

National Labor Relations Board posting rule stayed

The U.S. appeals court in Washington, D.C. issued an injunction barring the National Labor Relations Board from requiring employers to post a notice about union rights until the appeal is decided. The rule mandating the posting, which was to take effect on April 30, would have required most employers (including those without union workforces) to post the notice of rights.

The injunction will halt implementation of the rule, until the appeals court decides on an appeal of a district court judge's decision affirming the NLRB's authority to require the posters. The injunction should remain in effect until at least September, when the court is scheduled to hear the case.

Until the stay is lifted, only federal contractors need to comply with the new NRLB posting requirement.

Age Discrimination in Employment Act regulations amended

The Equal Employment Opportunity Commission issued its long-awaited final rule, amending its Age Discrimination in Employment Act regulations and clarifying the reasonable factors other than age (RFOA) defense in disparate impact claims (saying that, intentionally or not, an employer's actions harmed older employees more than younger employees). The ADEA applies to individuals 40 years of age or older.

According to an EEOC press release, the final rule clarifies that "the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age."

The rule explains the meaning of the RFOA defense to employees, employers and courts, and makes the EEOC's regulations consistent with U.S. Supreme Court case law.

In 2005, the U.S. Supreme Court held that disparate impact claims can be brought under the ADEA, and that an employer could use the RFOA as a defense against such claims. In a 2008 case, the court held that the employer bears the burden of production and persuasion when using an RFOA defense in an ADEA case.

Under the new rule, the individual challenging the allegedly unlawful employment practice bears the burden of isolating and identifying the specific employment practice responsible for the adverse impact. Then it falls to the employer to demonstrate the RFOA and convince a judge or jury that the employer was acting reasonably when it made that business decision.

Under the final rule, a "reasonable factor other than age" is a non-age factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances.

To better protect against age discrimination lawsuits under the ADEA, employers should closely consider the new standard for a "reasonable factor other than age" when assessing the impact of employment practices on older workers. Employers also should consider incorporating this new rule into antidiscrimination training.

The rule, effective April 30, applies to private employers with 20 or more employees, state and local government employers, employment agencies and labor organizations.

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Howard Rubin is a shareholder in Littler Mendelson's Portland office. Contact him at 503-221-0309 or hrubin@littler.com. Don Stait is Special Counsel in Littler Mendelson's Portland office. Contact him at 503-221-0309 or dstait@littler.com.

Published: Fri, May 4, 2012

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