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Court: Employers Can’t Stall Subpoenas to Run out OSHA’s Enforcement Clock

Employers consider many factors when choosing whether to challenge investigatory subpoenas. They now have an additional consideration: whether a court might grant the Occupational Safety and Health Administration (OSHA) more time to issue a citation if the employer challenges a subpoena. So said the U.S. District Court for the Western District of Texas in Secretary of Labor v. Ben E. Keith Company, No. SA-19-CV-527-XR (June 18, 2019).

In the case, the court granted OSHA’s petition to enforce a subpoena for documents even though the subject location had recently been closed. That it was now closed, the court held, was irrelevant.

Here is where it gets interesting. Normally, OSHA would have had six months after the “occurrence of any violation” to issue a citation under section 9(c) of the Occupational Safety and Health Act. But the court held that it can—and will—use the concept of equitable tolling to stop the running of the statute of limitations, thereby giving OSHA additional time within which to issue a citation. The court cited Acosta v. Quality Construction, Inc., which broadly held that “the equitable tolling doctrine is read into every federal statute of limitations, and the decision whether the doctrine should be applied lies within the sole discretion of the court.” The Quality Construction court’s rationale for tolling the statute of limitations was that “any other conclusion would allow [the employer] to defeat a potentially meritorious action by refusing to comply with a valid subpoena.”

In deciding whether to challenge an investigatory subpoena going forward, employers should keep in mind that a potential consequence could be that a court may give OSHA more time to issue a citation. Presumably, other federal enforcement agencies could cite Ben E. Keith Company to seek equitable tolling of other enforcement deadlines as well.

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About this Author

Lauren Marino, Ogletree Deakins Law Firm, Workplace Safety Attorney

Lauren Marino’s practice primarily involves advising management in matters of workplace safety and health and representing them before federal enforcement agencies.

Ms. Marino graduated summa cum laude in 2006 from the University of Kansas with a Bachelor of Arts in History. She went on to earn a Juris Doctor in 2010 from the University of Kansas School of Law, where she served as Senior Publications Editor for the Kansas Journal of Law and Public Policy. Prior to joining the firm, Ms. Marino worked in the Office of the...

Arthur Sapper, Administrative and Regulatory Attorney, Ogletree Deakins, Law Firm
Of Counsel

Arthur G. Sapper is Senior Counsel in the Washington, D.C. office of Ogletree Deakins, where he practices administrative and regulatory law. Art focuses his practice on all areas of occupational safety and health (OSHA) law and mine safety and health (MSHA) law, including inspections, discrimination investigations, litigation, rulemaking, counseling and lobbying.

Art litigates regularly before the Occupational Safety and Health Review Commission, the Federal Mine Safety and Health Review Commission, the federal appellate courts and various administrative bodies. He is a frequent author for EHS Today magazine.

Art has testified several times before Congress on OSHA issues. He was chosen by EHS TODAY magazine as among “The 50 People Who Most Influenced EHS in 2012-13.” He was also so chosen in 2010 and 2011.

Before joining the Firm, Art held the position of deputy general counsel of the Occupational Safety and Health Review Commission. He is also a former special counsel and