The U.S. Court of Appeals for the District of Columbia Circuit has rejected the argument put forth by the Secretary of Labor that the six-month statute of limitations on an employers' failure to maintain injury and illness records extends each time the failure occurs.
The case in point, AKM LLC, d/b/a Volks Constructors v. Secretary of Labor, involved the company's failure to maintain the legally required injury and illness records for five years. The Department of Labor (DOL) argued that each time the company failed to retain the records, the six-month statute of limitations was restarted. When the Occupational Safety and Health Administration (OSHA), following this interpretation of the statute of limitations, fined AKM LLC $13,300, the company sued. As the lawsuit made its way up the legal ladder, the Appeals Court eventually threw out the DOL position, arguing:
[T]he Secretary’s interpretation incorrectly assumes that the obligation to maintain an existing record expands the scope of an otherwise discrete obligation to make that record in the first place. But the two obligations are distinct: one cannot keep what never existed; a company cannot retain a record it never created.
The three-judge panel emphasized that “the mere requirement to save a record cannot possibly impose a continuing affirmative duty to correct past failures to make the record in the first place.”
The court, however, agreed that other violations that were repeated on an ongoing basis, such as safety and health violations, would indeed trigger a continuance of the statute of limitations.
“OSHA may be able to toll the statute of limitations on a continuing violations theory since the dangers created by the violations persist.”