The DC Circuit decision upholds per-instance OSHA citation of an employer in willful or egregious cases.

DC Circuit Upholds Per-Instance Penalties

Friday's decision by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit says the U.S. Labor secretary has the authority to penalize employers on a per-instance basis in willful or egregious cases.

The U.S. Labor Department and OSHA have won an important victory in a case before the U.S. Court of Appeals for the District of Columbia Circuit. In National Association of Home Builders, et al. v. OSHA and Department of Labor, No. 09-1053, a decision issued Friday, a three-judge panel of the court says the Labor secretary has the authority to penalize employers in willful or egregious cases on a per-employee basis -- each time the employer fails to provide a respirator to an employee or to provide training is a separate violation with its own monetary penalty, in other words. The rulemaking opposed by NAHB dealt with respiratory protection but also amended 33 other standards in the same way, according to the decision, which was written by Senior Circuit Judge A. Raymond Randolph for the panel.

The rulemaking at issue in the case was enacted because of the Erik K. Ho case, in which that employer was cited on a per-instance basis after employing 11 unprotected workers to renovate a Houston building that contained asbestos. The Occupational Safety and Health Review Commission rejected the per-instance approach, holding that only two violations occurred, so DOL enacted a rule to explicitly allow per-instance citations. NAHB contended in this case that only OSHRC can determine units of prosecution, but the judges rejected that argument.

"This is like saying that in a criminal case the court -- not the legislature -- defines the unit of prosecution because the court has exclusive authority to determine the punishment. That of course is not the law," Randolph wrote. "In giving the Secretary the authority to define what constitutes a violation . . . the [OSH] Act necessarily gave the Secretary the authority to define the unit of prosecution," the decision states.

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