BILL ANALYSIS                                                                                                                                                                                                    


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                                 THIRD READING

          Bill No:  AB 2774
          Author:   Swanson (D)
          Amended:  8/19/10 in Senate
          Vote:     21

           SENATE LABOR & INDUSTRIAL RELATIONS COMM  :  4-1, 6/23/10
          AYES:  DeSaulnier, Ducheny, Leno, Yee
          NOES:  Hollingsworth
          NO VOTE RECORDED:  Wyland

           ASSEMBLY FLOOR :  44-29, 6/2/10 - See last page for vote

           SUBJECT  :    Occupational safety and health

           SOURCE  :     Author

           DIGEST  :    This bill establishes a rebuttable presumption  
          as to when an employer commits a serious violation of the  
          provision requiring an employer to provide employees with a  
          safe workplace, as specified, and establishes 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.

           Senate Floor Amendments  of 8/19/10 make several technical  
          non-controversial grammatical changes that provide further  
          clarity on the requirements imposed by this bill on the  
          Division of Occupational Safety and Health.



                                                               AB 2774

           Senate Floor Amendments  of 8/10/10 repeal Labor Code  
          Section 6432 which provides a definition of a "serious  
          violation" and replace it with language that:  1) establish  
          a rebuttable presumption of when a "serious violation"  
          exists; 2) encourage Division of Occupational Safety and  
          Health and employer dialogue by establishing a process to  
          be followed by the Division before issuance of a citation;  
          3) allow an employer, as specified, to rebut a presumption  
          of a "serious violation;" 4) provide a definition for  
          "serious physical harm;" and, 5) define the qualifications  
          a safety engineer or industrial hygienist must have in  
          order to be deemed competent to offer testimony at  

           ANALYSIS  :    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 establishes 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 also establishes 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.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  8/16/10)

          American Federation of State, County and Municipal  
          Bricklayers and Allied Craftworkers Local 3 of Northern  
          California Applicants' Attorneys Association
          California Labor Federation
          California Nurses Association/National Nurses Organizing  


                                                               AB 2774

          California Rural Legal Assistance Foundation
          East Bay Repetitive Strain Injury Support Group
          International Brotherhood of Electrical Workers Local No.  
          Kazan, McClain, Lyons, Greenwood & Harley
          National Lawyers Guild
          Plumbers and Steamfitters Local 159
          State Building and Construction Trades Council of  
          California, AFL-CIO
          United Steelworkers Local 675
          UPTE-CWA Local 9119
          Voters Injured at Work

           OPPOSITION  :    (Verified  8/16/10)

          PASMA North
          PASMA South
          Walter and Price LLP

           ARGUMENTS IN SUPPORT  :    According to the author's office,  
          current workplace health and safety law does not contain an  
          adequate definition for "serious physical harm," which  
          impacts the ability of citations against employer for  
          "serious" violations from being upheld during the appeals  
          process.  According to proponents, this bill is a necessary  
          first step to bring the California occupational safety and  
          health program into compliance with Federal OSHA law.   In  
          addition, they state that this bill will help strengthen  
          the Cal/OSHA program, improve enforcement, and result in  
          better working conditions for all California workers. 

          Proponents note that California's rate of serious citations  
          is currently the lowest in the country.  Moreover, they  
          argue, California is likely out of compliance with the  
          Federal OSHA program.  Proponents contend that this bill is  
          needed because the OSH Appeals Board is applying the wrong  
          meaning to that phrase, won't issue a regulation, and won't  
          follow a regulation that Cal/OSHA might issue.  According  
          to proponents, with no statutory definition for "serious  
          physical harm," far too many citations issued after serious  
          injuries or fatalities are reclassified as general  
          violations.  Therefore, they believe that employers who  


                                                               AB 2774

          should be cited and penalized appropriately for serious  
          violations are instead given a "slap on the wrist" and  
          issued a general violation citation instead.

          Finally, supporters conclude that California's occupational  
          safety and health program has been the best in the country  
          in many regards for years.  California cannot and should  
          not risk jeopardizing the entire program because one aspect  
          is out of compliance, particularly when this aspect of the  
          problem may be promptly and effectively addressed through  
          legislation.  This bill is a crucial tool in the effort to  
          improve Cal/OSHA's ability to reach the worst offenders and  
          to level the playing field for legitimate law-abiding  
          businesses. Supporters state that this bill would benefit  
          those employers that play by the rules by enabling Cal/OSHA  
          to more effectively prosecute those employers that gain an  
          economic advantage from not protecting their employees'  
          safety and health.

           ASSEMBLY FLOOR  :  
          AYES:  Ammiano, Arambula, Bass, Beall, Block, Blumenfield,  
            Bradford, Brownley, Charles Calderon, Carter, Coto,  
            Davis, De La Torre, De Leon, Eng, Evans, Feuer, Fong,  
            Fuentes, Furutani, Hall, Hayashi, Hernandez, Hill,  
            Huffman, Jones, Bonnie Lowenthal, Ma, Mendoza, Monning,  
            Nava, V. Manuel Perez, Portantino, Ruskin, Salas,  
            Saldana, Skinner, Solorio, Swanson, Torlakson, Torres,  
            Torrico, Yamada, John A. Perez
          NOES:  Adams, Anderson, Bill Berryhill, Blakeslee,  
            Buchanan, Caballero, Conway, Cook, DeVore, Emmerson,  
            Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,  
            Harkey, Huber, Jeffries, Knight, Logue, Miller, Niello,  
            Nielsen, Norby, Silva, Smyth, Tran, Villines
          NO VOTE RECORDED: Tom Berryhill, Chesbro, Galgiani, Lieu,  
            Nestande, Audra Strickland 

          PQ:RJG:nl  8/19/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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