How far back can OSHA look for recordkeeping violations?
March 21, 2011 by Fred HosierPosted in: Recordkeeping, Special Report, What do you think?, cost of safety, new court decision
A recent ruling by the Occupational Safety and Health Review Commission (OSHRC) clarifies OSHA’s ability to fine companies for older recordkeeping violations.
OSHRC delivered a mixed ruling, but most of the decisions went against the company.
OSHA inspected Volks Constructors’ Prairieville, LA, facility on May 10, 2006 and issued five citations for recordkeeping violations on Nov. 8, 2006.
OSHA cited Volks for failure to:
- complete OSHA incident reports for the 67 injuries that occurred between August 2002 and April 2006
- enter 102 recordable injuries that occurred between January 2002 and April 2006 on its OSHA 300 logs
- review its 2002 to 2005 logs to verify that entries were complete and accurate and to correct any deficiencies
- have a company executive examine the logs and certify that the annual summaries (Form 300-A) were correct and complete, and
- post an annual summary of injuries from Feb. 1 to April 30, 2006.
Volks appealed the citations, arguing that the OSH Act states, “No citation may be issued … after the expiration of six months following the occurrence of any violation.”
OSHA noted that its regulations require employers to keep injury records for five years, so it argued that Volks’ lack of those records counted as a continuing violation.
OSHRC upheld the first four citations, agreeing with OSHA that employers can be fined for not having injury records that go back five years.
However it threw out the fifth citation because the OSHA regulation says injury summaries only have to be posted until April 30 of each year. Since the citation was issued more than six months after April 30, 2006, it wasn’t valid.
OSHRC upheld a $13,300 fine against Volks.
Note: One member of the three-person OSHRC panel that heard Volks’ appeal dissented. That commissioner said the six-month limitation should apply to all five citations, and that none of them were valid.
What do you think about this ruling? Let us know in the Comments Box below.
(Secretary of Labor v. AKM LLC dba Volks Constructors, OSHRC, No. 06-1990, 3/11/11)
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Tags: injury logs, OSHA logs, OSHRC, recordable injuries, Recordkeeping
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March 22nd, 2011 at 7:42 am
I agree with the Commissioner that dissented….after 6 months, there should be no citations. The statute of limitations is a built in safeguard to protect employers from tenacious prosecution efforts of the enforcement agency. Is recordkeeping really going to reduce injuries? I appreciate that covering up accidents is misleading, and does not afford OSHA the opportunity to “red flag” a company based on statistics and target them for compliance inspections. At the same time, most of the data collected is skewed; we saw the changes in legislation as to what constitutes lost time case a few years ago - the number of accidents has been steadily declining, but statistically, the number of lost time cases increased with the change. I see this as another “easy” method for OSHA to generate revenue. As the economy continues to sputter, you will see more and more similar decisions that are designed to enhance revenue generation for the government.
March 22nd, 2011 at 8:10 am
I would agree with OSHA on the part of, at the time of the OSHA visit, the company did not have records. This was clearly a violation of the of the regulations that records are required to be kept for five years. However, if this was a first time offence, I believe that the citation could have been issued without fines.
March 22nd, 2011 at 1:24 pm
I agree with Jason.
March 22nd, 2011 at 9:26 pm
I completely disagree with this OSHRC ruling.
The article doesn’t say whether Volks had no injury/illness records, or just incomplete records. It also doesn’t say when the inspection might have taken place (April 2006 is just on the edge of the 5 year horizon, and much before that is now well beyond) or whether during the inspection if OSHA found records from periods after 2006 that were done right. But in any event, assuming Volks had something in the way of injury records (however poor) and they were able to provided those records to OSHA in the required timeframes, then they met the “5-year” rule - they produced the records they had.
Any problems with the quality or completeness of those records is an entirely different matter. Those kinds of problems originated around the time of each case thus should only be citable within the 6 months after actual “violations” occured (I could even buy 6 months after the Annual OSHA 300 closes - so June 30 each year, but that’s it).
Simply having records about past incident events won’t ensure improved future. And imposing citations and violations for poor recordkeeping practices from years ago (esp. if there happens to be more recent evidence that the company was doing things right going forward) will not lead to any corrective actions that might affect current workplace hazards. It might even hurt improvement efforts if it causes more time/resources to be spent on paperwork, and less on improving the workplace conditions.
March 23rd, 2011 at 7:54 am
I agree with Jason as well , but one thing that the inspectors should take into account is “Has the company fixed the problem and since then the records are complete” If not, then a fine should be levied.
March 23rd, 2011 at 1:01 pm
OSHRC is supposed to be an independent federal agency to resolve disputes between OSHA and employers. I wonder just how independent they are. They are a part of the federal government and I don’t see how they can remain unbiased in their rulings. At least one member of the panel exercised some common sense.
As for the ruling, it’s a stretch to say OSHA was right in issuing fines. In fact, it was a stretch to come up with the “logic” that they say warranted the fine. It’s all about the money, folks, and it will only get worse.
April 5th, 2011 at 11:11 am
If it was a violation, then the citation should have been issued immediately. If a citation was not issued during the audit and no CARs were issued which required a follow-up visit, then absolutely no citations should be allowed to be issued after the OSHA officer has time to go back to the office and discuss the issues with his buddies and come up with a list of violations. If the inspector is not qualified, competent, or feel confident enough to right up citations on the spot trusting his judgement of the guidelines then he doesn’t need to be doing his job.
April 13th, 2011 at 9:49 am
Mr. Potts…Are you kidding us? You think that OSHA’s sole function is to “generate revenue”. A large number of employers routinely buffalo workers using the 6 month sham, and completely ignore the 5 year rule. Bob’s comment; “injury records (however poor) and they were able to provide those records to OSHA”…Again, are you kidding, and no fines just citations? Bet old Bob would car about that “poor recordkeeping” if it was his son or daughter battling a chronic disease caused by workplace exposure, and the records could shed some light on the problem. Finally, employers policing themselves is a fantasy $$$$$$$$$$$$