After some research on many record keeping violations that OSHA has placed or investigated, I came across an investigation that involved AKM LLC, that did business as Volks Contractors. After an OSHA inspection, citations were assessed and monetary fines were put into place. The company appealed the citations and the process continued.
This investigation into AKM LLC dates back from January 11, 2002 through April 22, 2006. OSHA states that the company did not prepare incident forms, incident logs, or year end summaries as they were to be filled out and some not at all. In November of 2006, OSHA issued 171 citations and a total of $13,300 in fines. The violation dates ranged from as far out as 4.5 years to a little over 6 months before the citation and fines were issued to the company. This company felt that the citations and fines were untimely and wanted them to be dismissed for this reason. An ALJ with the Occupational Safety and Health Review Commission (OSHRC) upheld the citations and fines, so the company decided to appeal.Order now
OSHA continued to argue that the violations were in fact timely as the company never bothered to correct them over time and the company continued to not meet the record keeping requirements. They also state that the statue of limitations has to be read along with the requirements that employers maintain records for five years. OSHA thus maintained that “the real statute of limitations” was the “record retention period plus the limitations period Congress proposed” — five years beyond the six months set forth in the Act. (Hammock, 2012)
The court didn’t buy OSHA’s argument as it said they were inconsistent with the language stated in the act. OSHA has a six month period in which they can issue citations. The court also believed that the event that was described happened in the past. “Under this interpretation, the company’s recordkeeping omissions and mistakes were the “events” that “occurred” and gave rise to the violations that might be cited. Because the violations occurred more than six months before OSHA issued the citations, the citations were untimely, the Court ruled.” (Hammock, 2012)
In addition, OSHA tried to use the six-month statue of limitations in the Act, on the 5 year record requirements that are set in the regulations. The court made sure to state that Congress appointed these authorities to OSHA to ensure that regulations requiring these employers to create and keep all the records, and this was done within the context of the Act’s statue of limitations. “The Court stated, We do not believe Congress expressly established a statute of limitations only to implicitly encourage the Secretary to ignore it.” To conclude otherwise, the Court reasoned, would lead to “absurd consequences.” (Hammock, 2012)
The court also came down on OSHA about its untimely response. The court pointed out that the main purpose of the Occupational Safety and Health Administration is to improve and keep the workplaces in America safe. They believe this is only accomplished if the response to violations and employers not in compliance are addressed quickly and within a timely manner. “Nothing in the statute suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-making violation over employers for years, and then cite the employer long after the opportunity to actually improve the workplace has passed.” (Hammock, 2012) After all was said and done, the courts concluded that the violations and fines were not in a timely manner and that the employer had won the appeal.
This case is just one of many that are similar. This case is some proof that the safety of these workplaces is of utmost importance and needs to be treated as a serious and timely manner. This shows that not all violations can be treated as continuing violations and could potentially benefit employers who have issues with violations that are dated. “It likely will have a major impact on the OSHA’s ability to issue recordkeeping citations in the first instance, especially those alleging large-scale violations going back years, even well before the agency’s inspection began.” (Hammock, 2012)
According to the Occupational Safety and Health Administration standard 1904.39 (United States Department of Labor, 2015): Recording and Reporting Occupational Injuries and Illness, employers have to:
• Within eight (8) hours after the death of any employee as a result of a work-related incident, you must report the fatality to the Occupational Safety and Health Administration (OSHA), U.S. Department of Labor.
• Within twenty-four (24) hours after the in-patient hospitalization of one or more employees or an employee ‘s amputation or an employee ‘s loss of an eye, as a result of a work-related incident, you must report the in-patient hospitalization, amputation, or loss of an eye to OSHA.
• When an authorized government representative asks for the records you keep under Part 1904, you must provide copies of the records within four (4) business hours.
• If you receive OSHA ‘s annual survey form, you must fill it out and send it to OSHA or OSHA ‘s designee, as stated on the survey form. You must report the following information for the year described on the form:
– the number of workers you employed;
– the number of hours worked by your employees; and
– the requested information from the records that you keep under Part 1904.
• Employers must retain records for a five year period
The above mentioned OSHA standards clearly depict what is expected by all employers when it comes to recording and reporting. While there are some exceptions and gray areas associated (fewer than 10 employers, etc.) the above mentioned are to be followed at all times by all employers. The above case depicts a company that was in violation of OSHA standards, but rightfully fought to appeal after they felt the violations and fines came at an inappropriate time. “In a case involving Volks Constructors of Prairieville, LA, the Occupational Safety and Health Review Commission (OSHRC) had ruled in 2011 that OSHA can look back five years for recordkeeping violations. But now the U.S. Court of Appeals for the District of Columbia Circuit has issued a decision that cuts the period down to just six months.” (Hosier, 2012) In the above case, OSHA waited beyond the period that they could apply fines.
They also debatably didn’t fine or cite for the appropriate violations that would’ve been upheld. For example, using OSHA’s five year retention period, the company would’ve been in violation and therefore, would’ve lost the appeal, if one was even filed. “the court points out OSHA’s error in this case. OSHA didn’t cite Volks for the loss or destruction of a record it never made. OSHA only cited Volks for failing to create a record, but it did that too late.” (Hosier, 2012). I believe the whole case in this falls back on OSHA’s negligence in enforcing the reporting and recording standard set forward.
“Inaccurate and incomplete data make governmental efforts to establish and enforce regulations to reduce workplace morbidity and mortality more difficult. Furthermore, the failure of between 5 percent and 73 percent of companies, depending on the industry, to keep the logs means that a substantial portion of workers are not being kept informed about workplace injury and health risks. The lack of logs may reflect the absence in these companies of other elements of a safe and healthful workplace.” (Seligman, Sieber, Pedersen, Sundin & Frazier, 1988) When employers aren’t compliant, it makes it difficult to protect the most valuable asset, the employees. Many companies aren’t compliant simply based on lack of knowledge.
While I understand that this company didn’t do any wrong and won the appeals process, there is still room for improvement. Now that they have been through this process, and OSHA is aware of their inconsistencies, they are more likely to revisit them in the future to ensure that they have become compliant and continue to do so. As OSHA made a mistake in their violation and fines the previous time, they are less likely to do so again in the future. If I were they president of the above mentioned company, I would first ensure that I know exactly what is expected of me as an employer with the record and reporting standard. I would want to know every in and out, and maybe even consider bringing in someone who knew the ins and outs to help get us in compliance. Once you understand how to do something and have fixed previous errors, it makes your recordkeeping process much easier to maintain in the future.
As an employer, the number one priority should be the safety and wellbeing of your workforce. OSHA’s main job is to ensure that all regulations and standards are enforced and employees are in fact safe. As an employer, as frustrating as paperwork and maintaining records can be, understanding why they are put in place is what is most important. When in compliance, we give OSHA the tools and resources to see what is working and what is creating injuries and faulty work practices. Utilizing this information allows OSHA to change, recreate, and update their processes in order to keep the workplace safe and also realistic to each job and work area.
Overall, these incidents occur more frequently than not. Recordkeeping can be tedious, but when maintained and done on a consistent bases, it is a useful tool not only for the employer to utilize when working on safe work practices, but also for the employees to be aware of what is going on in their individual work areas.