Search results for Search Type: MultiCriteria Parties: National Association of Home Builders Topic: OSHA Jurisdiction: D.C. Circuit Exclude Supreme Ct. Cases: No NAM Involvement: Any Year Decided: Any OSHA National Association of Home Builders v. OSHA (D.C. Circuit active) -- OSHA Challenge to OSHA's per-employee citation authority On December 12, 2008, OSHA published a rule that adopts or amends numerous standards and permits OSHA to obtain multiple penalties against an employer for providing incorrect personal protective equipment (PPE), no PPE, or incorrect training to employees. The new principle adopted in the rule is that the penalty is to be assessed for each employee, rather than based on the single decision or failure by the employer to use the proper training or PPE for all employees or a group of employees. The rule applies even when the violation is minor, not willful, and causes no harm or injury to employees. A $7,000 penalty for a “serious” violation, for example, could now become a $700,000 penalty if 100 employees are potentially affected, and OSHA could expand the per-employee penalty rule to other cases, not just PPE or training cases. The NAM, the National Association of Home Builders, and the U.S. Chamber of Commerce joined together in a lawsuit challenging this rule in the D.C. Circuit. We oppose the rule because Congress did not give OSHA the power to address penalty issues in its standards. Whether “per employee” penalties may be assessed is a question committed solely to the Occupational Safety and Health Review Commission, which may impose penalties on a “per employee” basis when they are warranted on the facts of a specific case. The suit does not challenge OSHA's requirements for training each employee or equipping each with personal protective equipment. The NAM's final brief was filed on September 17. Oral argument is scheduled for November 5 at 9:30 a.m. Our briefs argue that Congress did not delegate authority to OSHA to word a standard to change or affect a unit of violation; rather, Congress committed this authority to the OSH Review Commission and the courts. Related Documents: NAM Petition for Review (2/6/2009) NAM Statement of Issues (3/16/2009) NAM Opening Brief (7/7/2009) NAM Reply Brief (9/17/2009)   The information contained herein is only a summary of business cases and should not be construed or relied on as legal advice. Anyone interested in obtaining more information on the NAM's appellate litigation program or on the substantive issues in a case should contact Quentin Riegel, Vice President, Litigation, at (202) 637-3058.