BILL NUMBER: AB 2837 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 22, 2002
AMENDED IN SENATE AUGUST 5, 2002
AMENDED IN SENATE JUNE 24, 2002
AMENDED IN ASSEMBLY MAY 23, 2002
AMENDED IN ASSEMBLY APRIL 3, 2002
INTRODUCED BY Assembly Member Koretz
FEBRUARY 25, 2002
An act to add Section 102346 to the Health and Safety Code,
to amend Sections 6309, 6313, 6315, 6409.1, 6409.2, and 6423
of, and to add Sections 176 and 6356 to, the Labor Code, relating to
employment safety.
LEGISLATIVE COUNSEL'S DIGEST
AB 2837, as amended, Koretz. Safety in employment.
Existing law provides that the local registrar of births and
deaths shall transmit each week to the State Registrar all original
certificates accepted for registration by him or her during the
preceding week.
In addition, this bill would require the local registrar of births
and deaths to transmit a copy of each certificate of death for which
the death has been marked as work related.
Under existing law, the Division of Occupational Safety and Health
is not required to provide bilingual persons to assist in taking and
investigating complaints, or to provide interpreters at hearings.
This bill would require that the division provide
bilingual persons to provide information and services to
non-English-speaking persons, and interpreters at specified hearings,
interviews, and inspections related to occupational safety and
health the division to make all efforts to ensure that
limited-English-proficient persons can communicate effectively with
the division . The division would further be required to
prepare and distribute materials explaining services
available, and to prepare and use written materials in specified
local offices, in English and non-English languages a
progress report containing specified information, by July 30, 2004,
on the provision of information and services to non-English-speaking
persons .
Existing law requires that the division investigate the causes of
specified serious employment accidents unless it determines that an
investigation is unnecessary.
This bill would require the division to investigate an accident
resulting in a fatality within 24 hours of learning of the accident.
Existing law provides for a Bureau of Investigations in the
Division of Occupational Safety and Health to direct investigations
of specified employment accidents.
This bill would require permit the
Department of Industrial Relations, upon request by a county district
attorney, to develop a protocol containing specified provisions for
the immediate referral of cases by the bureau to the appropriate
prosecuting authority.
Existing law requires an employer to immediately file a report to
the division in every case involving a serious injury or illness, or
death.
This bill would impose a civil penalty of not less than $5,000
against any employer who fails to file a report as specified.
This bill would create in the General Fund the Worker Safety
Bilingual Investigative Support, Enforcement, and Training Account
(hereafter the account), to be expended by the department, upon
appropriation, for employment safety purposes, as defined. The
department would be authorized to receive and accept contributions
for those purposes, to be immediately deposited in the account. The
bill would prohibit the department from receiving or accepting a
contribution made from proceeds of a judgment in certain criminal
actions, relating to violations of the California Occupational Safety
and Health Act of 1973.
Existing law requires a state, county, or local fire or police
agency called to an industrial accident in which a serious injury or
illness, or death occurs to report the accident to the nearest office
of the division.
This bill would require that the division then notify the
appropriate prosecuting authority of the accident.
Existing law provides that every employer, and every officer,
management official, or supervisor having direction, management,
control, or custody of any employment, place of employment, or
employee is guilty of a misdemeanor if that person or entity, among
other things, knowingly or negligently violates any standard, order,
or special order, or any of certain provisions of law, or part
thereof, authorized by the California Occupational Safety and Health
Act of 1973, the violation of which is deemed to be a serious
violation, as defined.
This bill would also make it a misdemeanor where
provide that an employer, officer, management
official, or supervisor who knowingly fails to report a
death to the division or knowingly induces another to do so is
guilty of a misdemeanor . This bill would prescribe a penalty
of up to one year in jail, a fine of up to $25,000, or both. If the
violator is a corporation or a limited liability company, this bill
would impose a fine of up to $250,000.
By making certain violations of employee safety standards by
employers subject to criminal penalties, this bill would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
This bill also makes technical, nonsubstantive changes to existing
law.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 176 is added to the Labor Code, to read:
SECTION 1. Section 102346 is added to the Health and Safety Code,
to read:
102346. (a) The local registrar of births and deaths shall
transmit each month to the Division of Labor Statistics and Research
of the Department of Industrial Relations a copy of each certificate
of death for which the death has been marked as work-related and
which was accepted for registration by him or her during the
preceding month.
(b) This section shall become operative on January 1, 2003.
SEC. 2. Section 176 is added to the Labor Code, to read:
176. (a) The Legislature hereby finds and declares that the
Dymally-Alatorre Bilingual Services Act, Chapter 17.5 (commencing
with Section 7290) of Division 7 of Title 1 of the Government Code,
was enacted in 1973 to provide for the removal of language barriers
that prevent the people of this state who are not proficient in
English from effectively accessing government services and otherwise
communicating with their government.
The Legislature further finds and declares that
limited-English-proficient individuals will benefit from increased
language-based access to the programs and services of the Division of
Occupational Safety and Health.
The Legislature further finds and declares that federal statistics
show that from 1996 to 2000, while overall worker fatalities dropped
14 percent, immigrant worker fatalities rose 17 percent. Immigrant
workers die on the job at higher rates because they frequently work
in more dangerous industries with little or no training. Language
barriers compound the problem because training and warning signs are
often only in English.
(b) As used in this section, a "public contact position" means any
position responsible for responding to telephone or in-office
inquiries or taking complaints from the general public regarding
matters pertaining to occupational safety and health.
(c) As used in the section, an "investigative position" means any
position responsible for investigating complaints, injuries, or
deaths related to occupational safety and health.
(d) As used in this section, "limited-English-proficient" refers
to persons who speak English less than "very well," in accordance
with United States Census data.
(e) The division shall make all efforts to ensure that
limited-English-proficient persons can communicate effectively with
the division. Examples of potential measures include, but are not
limited to, the hiring of bilingual persons in public contract
positions and investigative positions, the use of contract based
interpreters, and the use of telephone-based interpretation services.
Nothing contained in this section relieves the division of its
separate obligations under the Dymally-Alatorre Bilingual Services
Act, Chapter 17.5 (commencing with Section 7290) of Division 7 of
Title 1 of the Government Code, or any other state or federal laws
requiring the provision of its services in languages other than
English.
(f) On July 30, 2004, the Division of Occupational Health and
Safety shall issue a progress report to the Legislature on the
implementation of this section that shall, at a minimum, include all
of the following:
(1) The most recent information provided to the California State
Personnel Board pursuant to Section 7299.4 of the Government Code.
(2) The number of bilingual employees in public contract and
investigative positions in each local office of the division and the
languages they speak, other than English.
(3) A description of any centralized system or other resources for
providing translation and interpretation services within the
division.
(4) A description of any quality control measures or evaluations
undertaken by the division to evaluate whether
limited-English-proficient persons are able to communicate
effectively with the division.
(5) A description of any means, such as contracted interpreters,
telephone-based interpretation services, or video conferencing, used
by the division to communicate with individuals who are
limited-English-proficient in the event that bilingual employees in
public contract or investigative positions are not available, and the
frequency in which these services were used by the division during
the most recent fiscal year.
176. (a) As used in this section, a "public contact position"
means any position responsible for responding to telephone or
in-office inquiries or taking complaints from the general public
regarding matters pertaining to occupational safety and health.
(b) As used in the section, an "investigative position" means any
position responsible for investigating complaints, injuries, or
deaths related to occupational safety and health.
(c) The Division of Occupational Safety and Health shall provide a
sufficient number of qualified bilingual persons in public contact
positions and investigative positions, or interpreters as needed to
assist persons in those positions, to provide information and
services to limited or non-English-speaking persons. At a minimum,
the division shall provide services in non-English languages in local
offices that serve a substantial number of non-English-speaking
people, as that term is defined in Section 7296.2 of the Government
Code.
(d) The division shall provide an interpreter at all hearings
where appropriate. An interpreter or qualified bilingual staff shall
be present at all interviews and inspections conducted in connection
with investigations of complaints, injuries, or deaths related to
occupational safety and health where the complainant or a substantial
number of the on-site employees or witnesses are
non-English-speaking persons.
(e) (1) The division shall prepare and distribute to the public,
through its local offices, materials in non-English languages, as
well as English, explaining services available. In addition, the
division shall prepare and use written materials in non-English
languages as well as in English for use by local offices if the local
office serves a substantial number of non-English-speaking people,
as that term is defined in Section 7296.2 of the Government Code.
(2) As used in this subdivision, "written materials" includes, but
is not limited to, complaint forms, notices, and information
regarding the process for filing a complaint relating to occupational
safety and health, and health and safety advisories distributed to
the general public regarding specific industries employing a
substantial number of non-English-speaking persons, including, but
not limited to, the agriculture, garment, and restaurant industries.
SEC. 2. Section 6309 of the Labor Code is amended to read:
6309. If the division learns or has reason to believe that any
employment or place of employment is not safe or is injurious to the
welfare of any employee, it may, of its own motion, or upon
complaint, summarily investigate the same with or without notice or
hearings. However, if the division secures a complaint from an
employee, the employee's representative, including, but not limited
to, an attorney, health or safety professional, union representative,
or representative of a government agency, or an employer of an
employee directly involved in an unsafe place of employment, that his
or her employment or place of employment is not safe, it shall, with
or without notice or hearing, summarily investigate the same as soon
as possible, but not later than three working days after receipt of
a complaint charging a serious violation, and not later than 14
calendar days after receipt of a complaint charging a nonserious
violation. The division shall attempt to determine the period of
time in the future that the complainant believes the unsafe condition
may continue to exist, and shall allocate inspection resources so as
to respond first to those situations in which time is of the
essence. For purposes of this section, a complaint is deemed to
allege a serious violation if the division determines that the
complaint charges that there is a substantial probability that death
or serious physical harm could result from a condition which exists,
or from one or more practices, means, methods, operations, or
processes which have been adopted or are in use in a place of
employment. When a complaint charging a serious violation is
received from a state or local prosecutor, or a local law enforcement
agency, the division shall summarily investigate the employment or
place of employment within 24 hours of receipt of the complaint. All
other complaints are deemed to allege nonserious violations. The
division may enter and serve any necessary order relative thereto.
The division is not required to respond to any complaint within this
period where, from the facts stated in the complaint, it determines
that the complaint is intended to willfully harass an employer or is
without any reasonable basis.
The division shall keep complete and accurate records of any
complaints, whether verbal or written, and shall inform the
complainant, whenever his or her identity is known, of any action
taken by the division in regard to the subject matter of the
complaint, and the reasons for the action. The records of the
division shall include the dates on which any action was taken on the
complaint, or the reasons for not taking any action on the
complaint. The division shall, pursuant to authorized regulations,
conduct an informal review of any refusal by a representative of the
division to issue a citation with respect to any alleged violation.
The division shall furnish the employee or the representative of
employees requesting the review a written statement of the reasons
for the division's final disposition of the case.
The name of any person who submits to the division a complaint
regarding the unsafeness of an employment or place of employment
shall be kept confidential by the division, unless that person
requests otherwise.
The requirements of this section do not relieve the division of
its requirement to inspect and assure that all places of employment
are safe and healthful for employees. The division shall maintain
the capability to receive and act upon complaints at all times.
SEC. 3. Section 6313 of the Labor Code is amended to read:
6313. (a) The division shall investigate the causes of any
employment accident that is fatal to one or more employees or that
results in a serious injury or illness, or a serious exposure, unless
it determines that an investigation is unnecessary. If the division
determines that an investigation of an accident is unnecessary, it
shall summarize the facts indicating that the accident need not be
investigated and the means by which the facts were determined. The
division shall establish guidelines for determining the circumstances
under which an investigation of these accidents and exposures is
unnecessary.
(b) The division may investigate the causes of any other
industrial accident or occupational illness which occurs within the
state in any employment or place of employment, or which directly or
indirectly arises from or is connected with the maintenance or
operation of the employment or place of employment, and shall issue
any orders necessary to eliminate the causes and to prevent
reoccurrence. The orders may not be admitted as evidence in any
action for damages, or any proceeding to recover compensation, based
on or arising out of injury or death caused by the accident or
illness.
SEC. 4. Section 6315 of the Labor Code is amended to read:
6315. (a) There is within the division a Bureau of
Investigations. The bureau is responsible for directing accident
investigations involving violations of standards, orders, or special
orders, or Section 25910 of the Health and Safety Code, in which
there is a serious injury to five or more employees, death, or
request for prosecution by a division representative. The bureau
shall review inspection reports involving a serious violation where
there have been serious injuries to one to four employees or a
serious exposure, and may investigate those cases in which the bureau
finds criminal violations may have occurred. The bureau is
responsible for preparing cases for prosecution, including evidence
and findings.
(b) The division shall provide the bureau with all of the
following:
(1) All initial accident reports.
(2) The division's inspection report for any inspection involving
a serious violation where there is a fatality, and the reports
necessary for the bureau's review required pursuant to subdivision
(a).
(3) Any other documents in the possession of the division
requested by the bureau for its review or investigation of any case.
(c) The supervisor of the bureau is the administrative chief of
the bureau, and must be an attorney.
(d) The bureau shall be staffed by as many attorneys and
investigators as are necessary to carry out the purposes of this
chapter. To the extent possible, the attorneys and investigators
shall be experienced in criminal law.
(e) The supervisor of the bureau and bureau representatives
designated by the supervisor have a right of access to all places of
employment necessary to the investigation, may collect any evidence
or samples they deem necessary to an investigation, and have all of
the powers enumerated in Section 6314.
(f) The supervisor of the bureau and bureau representatives
designated by the supervisor may serve all processes and notices
throughout the state.
(g) In any case where the bureau is required to conduct an
investigation, and in which there is a serious injury or death, the
results of the investigation shall be immediately referred by the
bureau to the appropriate prosecuting authority having jurisdiction
for appropriate action, unless the bureau determines that there is
legally insufficient evidence of a violation of the law.
(h) The bureau may communicate with the appropriate prosecuting
authority at any time the bureau deems appropriate.
(i) Upon the request of a county district attorney, the department
shall may develop a protocol for the
referral of cases that may involve criminal conduct to the
appropriate prosecuting authority in lieu of or in cooperation with
an investigation by the bureau. The protocol shall provide for the
voluntary acceptance of referrals after a review of the case by the
prosecuting authority. In cases accepted for investigation by the
prosecuting authority, the protocol must provide for cooperation
between the prosecuting authority, the division, and the bureau.
Where a referral is declined by the prosecuting authority, the bureau
shall investigate the case as provided by subdivisions (a)
through (i), inclusive. comply with subdivisions (a)
through (h), inclusive.
SEC. 5. Section 6356 is added to the Labor Code, to read:
6356. (a) There is hereby created, in the General Fund, the
Worker Safety Bilingual Investigative Support, Enforcement, and
Training Account. The moneys in the account may be expended by the
department, upon appropriation by the Legislature, for the purposes
of this part.
(b) The department may receive and accept a contribution of funds
from an individual or private organization, including the proceeds
from a judgment in a state or federal court, if the contribution is
made to carry out the purposes of this part. The department shall
immediately deposit the contribution in the account established by
subdivision (a).
(c) The department may not receive or accept a contribution of
funds under this section made from the proceeds of a judgment in a
criminal action filed pursuant to Section 6423 or 6425 of the Labor
Code.
SEC. 6. Section 6409.1 of the Labor Code is amended to read:
6409.1. (a) Every employer shall file a complete report of every
occupational injury or occupational illness, as defined in
subdivision (b) of Section 6409, to each employee which results in
lost time beyond the date of the injury or illness, or which requires
medical treatment beyond first aid, with the Department of
Industrial Relations, through its Division of Labor Statistics and
Research or, if an insured employer, with the insurer, on a form
prescribed for that purpose by the Division of Labor Statistics and
Research. A report shall be filed concerning each injury and illness
which has, or is alleged to have, arisen out of and in the course of
employment, within five days after the employer obtains knowledge
of the injury or illness. Each report of occupational injury or
occupational illness shall indicate the social security number of the
injured employee. In the case of an insured employer, the insurer
shall file with the division immediately upon receipt, a copy of the
employer's report, which has been received from the insured employer.
In the event an employer has filed a report of injury or illness
pursuant to this subdivision and the employee subsequently dies as a
result of the reported injury or illness, the employer shall file an
amended report indicating the death with the Department of Industrial
Relations, through its Division of Labor Statistics and Research or,
if an insured employer, with the insurer, within five days after the
employer is notified or learns of the death. A copy of any amended
reports received by the insurer shall be filed with the division
immediately upon receipt.
(b) In every case involving a serious injury or illness, or death,
in addition to the report required by subdivision (a), a report
shall be made immediately by the employer to the Division of
Occupational Safety and Health by telephone or telegraph. An
employer who violates this subdivision may be assessed a civil
penalty of not less than five thousand dollars ($5,000).
Nothing in this subdivision shall be construed to increase the
maximum civil penalty, pursuant to Sections 6427 to 6430, inclusive,
that may be imposed for a violation of this section.
SEC. 7. Section 6409.2 of the Labor Code is amended to read:
6409.2. Whenever a state, county, or local fire or police agency
is called to an accident involving an employee covered by this part
in which a serious injury or illness, or death occurs, the responding
agency shall immediately notify the nearest office of the Division
of Occupational Safety and Health by telephone. Thereafter, the
division shall immediately notify the appropriate prosecuting
authority of the accident.
SEC. 8. Section 6423 of the Labor Code is amended to read:
6423. (a) Except where another penalty is specifically provided,
every employer and every officer, management official, or supervisor
having direction, management, control, or custody of any employment,
place of employment, or of any other employee, who does any of the
following is guilty of a misdemeanor:
(1) Knowingly or negligently violates any standard, order, or
special order, or any provision of this division, or of any part
thereof in, or authorized by, this part the violation of which is
deemed to be a serious violation pursuant to Section 6432.
(2) Repeatedly violates any standard, order, or special order, or
provision of this division, or any part thereof in, or authorized by,
this part, which repeated violation creates a real and apparent
hazard to employees.
(3) Fails Knowingly fails to report
to the division a death, as required by subdivision (b) of Section
6409.1.
(4) Fails or refuses to comply, after notification and expiration
of any abatement period, with any such standard, order, special
order, or provision of this division, or any part thereof, which
failure or refusal creates a real and apparent hazard to employees.
(5) Directly or indirectly, knowingly induces another to commit
any of the acts in paragraph (1), (2), (3), or (4) of subdivision
(a).
(b) Any violation of paragraph (1) of subdivision (a) is
punishable by imprisonment in the county jail for a period not to
exceed six months, or by a fine not to exceed five thousand dollars
($5,000), or by both that imprisonment and fine.
(c) Any violation of paragraph (3) of subdivision (a) is
punishable by imprisonment in county jail for up to one year, or by a
fine not to exceed twenty-five thousand dollars ($25,000), or by
both that imprisonment and fine. If the violator is a corporation or
a limited liability company, the fine prescribed by this subdivision
may not exceed two hundred fifty thousand dollars ($250,000).
(d) Any violation of paragraph (2), (4), or (5) of subdivision
(a) is punishable by imprisonment in a county jail for a term not
exceeding one year, or by a fine not exceeding fifteen thousand
dollars ($15,000), or by both that imprisonment and fine. If the
defendant is a corporation or a limited liability company, the fine
may not exceed one hundred fifty thousand dollars ($150,000).
(e) In determining the amount of fine to impose under this
section, the court shall consider all relevant circumstances,
including, but not limited to, the nature, circumstance, extent, and
gravity of the violation, any prior history of violations by the
defendant, the ability of the defendant to pay, and any other matters
the court determines the interests of justice require.
SEC. 9. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.