INTRODUCED BY   Assembly Member Swanson

                        MARCH 1, 2010

   An act to repeal and add Section 6432 of the Labor Code, relating
to employment.


   AB 2774, as amended, Swanson. Occupational safety and health.
   Existing law requires an employer to provide employees with a safe
workplace and authorizes the Division of Occupational Safety and
Health within the Department of Industrial Relations to enforce
health and safety standards in places of employment and to
investigate and to issue a citation and impose civil penalties when
an employer commits a serious violation that causes an employee to
suffer or potentially suffer, among other things, "serious injury or
illness" or "serious physical harm."
   This bill would establish a rebuttable presumption as to when an
employer commits a serious violation of these provisions and would
define serious physical harm, as specified. The bill would also
establish new procedures and standards for an investigation and the
determination by the division of a serious violation by an employer
which causes harm or exposes an employee to the risk of harm.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


  SECTION 1.  Section 6432 of the Labor Code is repealed.
  SEC. 2.  Section 6432 is added to the Labor Code, to read:
   6432.  (a) There shall be a rebuttable presumption that a "serious
violation" exists in a place of employment if the division
demonstrates that there is a realistic possibility that death or
serious physical harm could result from the actual hazard created by
the violation. The demonstration of a violation by the division is
not sufficient by itself to establish that the violation is serious.
The actual hazard may  be either of the following 
 consist of, among other things  :
   (1) A serious exposure exceeding an established permissible
exposure limit.
   (2) The existence in the place of employment of one or more unsafe
or unhealthful practices, means, methods, operations, or processes
that have been adopted or are in use.
   (b) (1) Before issuing a citation alleging that a violation is
serious, the division shall make a reasonable attempt to determine
and consider, among other things, all of the following:
   (A) Training for employees and supervisors relevant to preventing
employee exposure to the hazard or to similar hazards.
   (B) Procedures for discovering, controlling access to, and
correcting the hazard or similar hazards.
   (C) Supervision of employees exposed or potentially exposed to the
   (D) Procedures for communicating to employees about the employer's
health and safety rules and programs.
   (E) Information that the employer wishes to provide, at any time
before citations are issued, including, any of the following:
   (i) The employer's explanation of the circumstances surrounding
the alleged violative events.
   (ii) Why the employer believes a serious violation does not exist.

   (iii) Why the employer believes its actions related to the alleged
violative events were reasonable and responsible so as to rebut,
pursuant to subdivision (c), any presumption established pursuant to
subdivision (a).
   (iv) Any other information that the employer wishes to provide.
   (2) The division shall  satisfy its requirement to 
determine and consider the facts specified in paragraph (1) if, not
less than 15 days prior to issuing a citation for a serious
violation, the division delivers to the employer a standardized form
containing  descriptions of the alleged violations 
 the alleged violation descriptions ("AVD") it intends to cite as
serious  and clearly soliciting the information specified in
this subdivision. The director shall prescribe the form for the
alleged violation descriptions and solicitation of information. Any
forms issued pursuant to this section shall be exempt from the
rulemaking provisions of the Administrative Procedure Act (Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code).
   (c) If the division establishes a presumption pursuant to
subdivision (a) that a violation is serious, the employer may rebut
the presumption and establish that a violation is not serious by
demonstrating that the employer did not know and could not, with the
exercise of reasonable diligence, have known of the presence of the
violation. The employer may accomplish this by demonstrating both of
the following:
   (1) The employer took all the steps a reasonable and responsible
employer in like circumstances should be expected to take, before the
violation occurred, to anticipate and prevent the violation, taking
into consideration the severity of the harm that could be expected to
occur and the likelihood of that harm occurring in connection with
the work activity during which the violation occurred. Factors
relevant to this determination include  , but are not limited to,
 those listed in subdivision (b).
   (2) The employer took effective action to eliminate employee
exposure to  any hazard created by a  the hazard
created by the  violation as soon as the violation was
   (d) If the employer does not provide information in response to a
division inquiry made pursuant to  subdivisions (b) and (c)
  subdivision (b)  , the employer shall not be
barred from presenting that information at the hearing and no
negative inference shall be drawn. The employer may offer different
information at the hearing than what was provided to the division and
may explain any inconsistency, but the trier of fact may draw a
negative inference from the prior  out-of-court 
inconsistent factual information. The trier of fact may also draw a
negative inference from factual information offered at the hearing by
the division that is inconsistent with factual information provided
to the employer pursuant to  subdivisions (b) and (c)
  subdivision (b)  , or from a failure by the
division to provide the form setting forth the descriptions of the
alleged violation and soliciting information pursuant to subdivision
   (e) "Serious physical harm," as used in this part, means any
injury or illness, specific or cumulative, occurring in the place of
employment or in connection with any employment, that results in any
of the following:
   (1) Inpatient hospitalization for purposes other than medical
   (2) The loss of any member of the body.
   (3) Any serious degree of permanent disfigurement.
   (4) Impairment sufficient to cause a part of the body or the
function of an organ to become permanently and significantly reduced
in efficiency on or off the job, including,  but not limited to,
 depending on the severity, second-degree or worse burns,
crushing injuries including internal injuries even though skin
surface may be intact, respiratory illnesses, or broken bones.
   (f) Serious physical harm may be caused by a single, repetitive
practice, means, method, operation, or process.
   (g) A division safety engineer or industrial hygienist who can
demonstrate  , at the time of the hearing,  that his or her
division-mandated training is current shall be deemed competent to
offer  credible  testimony to establish each element
of a serious violation, and may offer evidence on the custom and
practice of injury and illness prevention in the workplace that is
relevant to the issue of whether the violation is a serious