End of the Line Near for <I>Johnson Controls</I>?

A 1993 decision familiar to any lawyer practicing employment cases in this country is Johnson Controls Inc., No. 89-2614, which held that an uncorrected error or omission from an employer's required OSHA 200 Log could be cited six months from the time OSHA discovered, or reasonably should have discovered, the violation. This greatly extended OSHA's enforcement power in recordkeeping cases, which otherwise would be constrained by the OSH Act's Section 9(c), which says "no citation may be issued  . . . after the expiration of six months following the occurrence of any violation." The employer in a case pending at the Occupational Safety and Health Review Commission hopes to overturn Johnson Controls -- thus imposing the six-month statute of limitations in recordkeeping cases.

The case is Secretary of Labor v. AKM LLC dba Volks Constructors, No. 06-1990. Volks is contesting a citation issued Nov. 8, 2006, but alleging Volks did not enter 102 recordable cases on its logs for calendar years 2002 through 2006. The most recent alleged violation in the citation occurred April 26, 2006, more than six months before OSHA issued its citation.

The Labor Department argues that the recordkeeping standard incorporates the "discovery rule" recognized by Johnson Controls, but Volks' attorneys, including Arthur Sapper of Washington, D.C.'s McDermott Will & Emery LLP, argue there is no such language in the statute. They contend a 1994 decision by the U.S. Court of Appeals for the District of Columbia Circuit, to which OSHRC decisions can be appealed, rejects the use of discovery rules in administrative prosecutions, and that the statute of limitations in the OSH Act itself bars citations for violations that happened years in the past. OSHRC Chief Administrative Law Judge Irving Sommer ruled against Volks on June 28, 2007, writing that because Johnson Controls applies in the case, the citation was not time-barred.

Demonstrating the significance of the case nationally, the National Federation of Independent Business Legal Foundation filed an amicus brief Nov. 27 supporting Volks' position. The OSHRC briefing notice in the case specifically asked both sides to brief whether Sommer erred by ruling the violations were not barred by 9(c)'s six-month statute of limitations.

"I think [Johnson Controls] should be overturned for the reasons that Art states in his brief," said Bob Rader, a former OSHRC commissioner who is of counsel to Dallas'  Rader &; Campbell, a busy employment law firm. "I know from personal experience that the points he makes there are accurate. There may be valid reasons that items weren't recorded, but witnesses can't recall what happened or you can't produce the evidence necessary," Rader said. He said OSHRC has ruled in construction cases that even within the six-month statute of limitations, passage of time can hamper an employer's ability to defend itself -- the job may have been completed, the workers and contractors may have scattered to other jobs, and evidence to prove why a case need not have been recorded may have been lost. "How much greater is that prejudice [against the employer's case] when you have a situation like the one here, where you're talking about four or five years" between the alleged violation and the citation, he added.

Indeed, Volks' brief states that the employee who prepared the company's 2002 log died before OSHA issued its citation.

Rader said he believes OSHRC, currently having only two members, may split on the case. The case may ultimately be appealed to the D.C. Circuit Court of Appeals.

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