“The clock is ticking, the hours are going by. The past increases, the future recedes. Possibilities decreasing, regrets mounting.”

Haruki Murakami, Dance Dance Dance

Most employment lawyers seldom bother reading cases involving other areas: too little time, too little applicability. There are exceptions, including the Supreme Court’s recent decision in Gabelli v. SEC, 133 S.Ct. 1216 (Feb. 23, 2013), that make such extracurricular reading well worth the effort.

In Gabelli, the Supreme Court unanimously rejects the “discovery rule” in enforcement actions by a federal government agency. Under the discovery rule, the statute of limitations period does not begin to run until the legal violation has been (or reasonably should have been) discovered.

Gabelli holds that — for government prosecutions — the limitations period runs once a violation occurs, regardless of when the enforcement agency discovers the violation. This, however, does not affect the application of the discovery rule for private plaintiffs for two reasons.

  1. “The discovery rule helps to ensure that the injured receive recompense. But this case involves penalties, which go beyond compensation, are intended to punish, and label defendants wrongdoers.”
  2. “Unlike the private party who has no reason to suspect fraud, the SEC’s very purpose is to root it out, and it has many legal tools at hand to aid in that pursuit…Charged with this mission and armed with these weapons, the SEC as enforcer is a far cry from the defrauded victim the discovery rule evolved to protect.”

So, what does this have to do with OSHA? Everything.

Nothing in the Supreme Court’s opinion limits this holding to SEC enforcement. Linguistically, the opinion signals that broader application with phrases such as “The SEC, for example, is not like an individual….” Further, the statute of limitations at issue is not specific to securities law but “governs many penalty provisions throughout the U.S. Code.” It also notes that where Congress wanted to apply the discovery rule in government prosecutions, it included an express provision to that effect.

OSHA prosecutions, accordingly, should likewise be barred from relying on the discovery rule. Here too, there are “no textual, historical, or equitable reasons to graft a discovery rule into the statute of limitations.” This is significant because the Occupational Safety and Health Review Commission has historically applied that discovery rule. See, Secretary of Labor v. Safeway Store No. 914, 1992 O.S.H.D. (CHH) 29597 (1992) (Review Commission applied the discovery rule to permit prosecution belatedly: “Commission precedent, however, does not prevent the Secretary from later enforcing OSHA standards against an employer for violations which may have existed during a prior inspection but were not readily apparent to the Secretary”).

Post-Gabelli, Safeway prevails on its statute of limitations defense, as does every other employer when OSHA attempts to penalize time-barred conduct or conditions. This protection from prosecution from historical conduct is also reinforced by AKM LLC d/b/a Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012), which limited OSHA’s use of the “continuing violation” theory to extend the statute of limitations.

It’s about time that someone other than novelists paid attention to time.