A case against Volks Constructors may set a precedent for the window of time in which a business can be cited for OSHA reporting violations. The case at hand, Secretary of Labor v. AKM LLC d/b/a Volks Constructors, raises the question of whether a company can be cited for 5-year-old recordkeeping violations. The issue is “of serious consequence to small businesses of all industries,” according to the National Federation of Independent Business Legal Foundation, which claims that companies are subject to stiff fines for these violations and will find it difficult to defend itself against five-year old charges.
The case revolves around two conflicting precedents. The plaintiff argues that the statute of limitations expires “six months from the time the Secretary of Labor does discover, or reasonably should have discovered, the facts necessary to issue a citation.” They claim that the clock should have started ticking in 2006 when the violation was discovered, based on the 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co. The Department of Labor contends that “precedent squarely forecloses Volks’s argument and Volks has not offered persuasive reasons for the commission to depart from that precedent.” They go on to say that “the six-month limit was not included by Congress so that employers could get away with violations. Rather, Congress understood the burden of mounting a defense once a claim has become stale. An employer’s ability to tell its story dissipates sharply as time passes, particularly when it comes to subtle details.” The Department of Labor argues that an inaccurate entry violates the law until it is corrected, or the 5-year record retention requirement expires. A decision is expected in 2011.