BILL NUMBER: AB 2346	ENROLLED
	BILL TEXT

	PASSED THE SENATE  AUGUST 27, 2012
	PASSED THE ASSEMBLY  AUGUST 29, 2012
	AMENDED IN SENATE  AUGUST 21, 2012
	AMENDED IN SENATE  AUGUST 6, 2012
	AMENDED IN SENATE  JULY 2, 2012
	AMENDED IN ASSEMBLY  APRIL 25, 2012
	AMENDED IN ASSEMBLY  APRIL 9, 2012

INTRODUCED BY   Assembly Member Butler

                        FEBRUARY 24, 2012

   An act to amend Section 6330 of, and to add Chapter 10 (commencing
with Section 6720) to Part 1 of Division 5 of, the Labor Code,
relating to occupational safety.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2346, Butler. Agricultural employee safety: heat-related
illness.
   (1) Existing law permits the Occupational Safety and Health
Standards Board within the Department of Industrial Relations to
adopt occupational health and safety standards to protect the welfare
of employees. The Division of Occupational Safety and Health
enforces occupational safety and health standards and orders. Certain
violations of these standards and orders are crimes. Existing
regulations prescribe duties with respect to heat illness prevention
in outdoor places of employment.
   This bill would prescribe specified duties on employers to reduce
the risk of heat illness among agricultural employees, including the
adopted heat illness prevention regulatory requirements. The bill
would impose specified civil penalties, and create a private right of
action, for violations of these requirements. The bill would impose
a state-mandated local program because certain violations of the bill'
s requirements would be a crime under existing provisions of law. The
bill would require the Director of Industrial Relations to provide
an annual report to the Legislature regarding the enforcement of the
requirements.
   (2) 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.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  (a) This act may be known, and shall be cited, as the
Farm Worker Safety Act of 2012.
   (b) It is the intent of the Legislature to ensure that employers
provide farm workers with sufficient water and adequate shade and
that employers take necessary and appropriate steps to prevent heat
illness and death. This act creates a meaningful deterrent for all
employers who violate heat illness prevention requirements,
especially those employers who are repeat offenders.
  SEC. 2.  Section 6330 of the Labor Code is amended to read:
   6330.  (a) The director shall prepare and submit to the
Legislature, not later than March 1, an annual report on the division
activities. The report shall include, but need not be limited to,
the following information for the previous calendar year:
   (1) The amount of funds allocated and spent in enforcement,
education and research, and administration by the division.
   (2) Total inspections made, and citations issued by the division.
   (3) The number of civil penalties assessed, total amount of fines
collected, and the number of appeals heard.
   (4) The number of contractors referred to the Contractors' State
License Board for hearing, pursuant to Section 7109.5 of the Business
and Professions Code, and the total number of these cases resulting
in suspension or revocation of a license.
   (5) The report from the division prepared by the Bureau of
Investigations for submission to the director pursuant to Section
6315.3.
   (6) Recommendations for legislation that improves the ability of
the division to provide safety in places of employment.
   (7) (A) The number of complaints received charging a violation of
Section 3395 of Title 8 of the California Code of Regulations or of
Chapter 10 (commencing with Section 6720), and the number of those
complaints that did not result in an onsite inspection.
   (B) The amount of initial penalties imposed for a violation of
Section 3395 of Title 8 of the California Code of Regulations or of
Chapter 10 (commencing with Section 6720), the amount by which those
penalties were reduced through amendment, the amount by which those
penalties were reduced through informal settlement, the amount by
which those penalties were reduced through formal settlement, the
amount by which those penalties were reduced by decision of the
appeals board, other than a decision approving a formal settlement,
and the amount by which those penalties were reduced by any other
means.
   (C) The amount of penalties collected for a violation of Section
3395 of Title 8 of the California Code of Regulations or of Chapter
10 (commencing with Section 6720).
   (b) The report shall be made to the Speaker of the Assembly and
the Chairperson of the Senate Committee on Rules, for assignment to
the appropriate committee or committees for evaluation.
  SEC. 3.  Chapter 10 (commencing with Section 6720) is added to Part
1 of Division 5 of the Labor Code, to read:
      CHAPTER 10.  AGRICULTURAL EMPLOYMENT


   6720.  Except as otherwise provided, this chapter incorporates the
definitions set forth in Section 3395 of Title 8 of the California
Code of Regulations. For the purpose of this chapter, the following
terms have the following meanings:
   (a) "Employee" means an agricultural employee.
   (b) "Employer" means an agricultural employer.
   (c) "Farm operator" includes both of the following:
   (1) A person who owns the real property used in the farming
operation, except that, when the real property is leased, the owner
is considered a farm operator only if he or she gains something of
benefit from the farming operation beyond the reasonable and
customary rent or cost of leasing the property.
   (2) A person who leases the real property used in the farming
operation.
   (d) "Farming operation" shall be liberally construed to include
farming in any of its branches, and includes the production,
cultivation, growing, harvesting, packing, whether in a field,
packing shed, or any other location, or shipping of any agricultural
or horticultural commodities, including commodities defined as
agricultural commodities in Section 1141j(f) of Title 12 of the
United States Code; any activity necessary to the operation of a
dairy farm, as defined in Section 32505 of the Food and Agricultural
Code; the raising of livestock, bees, furbearing animals, or poultry;
and any practices, including any forestry or lumbering operations,
performed by a farm operator or in a farm operation as an incident to
or in conjunction with these farming operations, including
preparation for market and delivery to storage or to market or to
carriers for transportation to market.
   (e) "Repeat offender" means both of the following:
   (1) A farm operator, if the farm operator or any agricultural
employer acting on the real property used in the farm operator's
farming operation, violates Section 3395 of Title 8 of the California
Code of Regulations or commits any other violation of this chapter
on two or more days within a three-year period.
   (2) An agricultural employer, other than a farm operator, who
violates Section 3395 of Title 8 of the California Code of
Regulations or commits any other violation of this chapter on two or
more days within a three-year period.
   6721.  (a) This chapter applies to the control of the risk of
occurrence of heat illness among agricultural employees. This chapter
is not intended to exclude the application of any section of Title 8
of the California Code of Regulations. This chapter applies to all
outdoor places of agricultural employment.
   (b) (1) An employer shall comply with Section 3395 of Title 8 of
the California Code of Regulations and with any other regulation or
statute imposing requirements related to the prevention of heat
illness, including those requiring an employer to provide employees
with water, shade, or training in the prevention of heat illness.
   (2) An employee shall not be discharged or penalized in any way
for taking action to secure his or her employer's compliance with the
requirements of this chapter, including the requirements of Section
3395 of Title 8 of the California Code of Regulations. Actions to
secure an employer's compliance with the requirements of this chapter
include directly or indirectly communicating with the employer about
the requirements of this chapter or the prevention of heat illness;
reporting a violation of this chapter or otherwise communicating with
a person or entity about the employer's compliance with the
requirements of this chapter; or participating in any way in an
investigation, action, or proceeding to enforce the requirements of
this chapter.
   (c) (1) An employer shall certify by January 31 of each year, or
on the first day of operation in any calendar year in which an
employer begins an employment relationship after January 31, that the
employer has adopted written procedures for complying with the
requirements of this chapter, and has acquired and made available to
the appropriate persons all materials and equipment necessary for
providing employees with water, shade, and training in the prevention
of heat illness, as required by law. This certification shall be in
writing, signed, and dated, and shall be made available within 24
hours after a request is made by a representative of the division, an
employee, or a representative of an employee.
   (2) If, following certification, an employer is found not to have
adopted written procedures for complying with the requirements of
this chapter, or is found to lack any of the materials and equipment
necessary for providing employees with water, shade, and training in
the prevention of heat illness, as required by law, there shall be a
rebuttable presumption that the certification was false at the time
it was made, and the employer shall be subject to penalties for
fraud.
   6722.  (a) (1) In addition to any other available causes of
action, irrespective of any action or omission of the division in the
enforcement of this chapter, an employee affected by an employer's
failure to comply with this chapter, including a failure to comply
with Section 3395 of Title 8 of the California Code of Regulations,
may bring a civil action against a repeat offender for any of the
following:
    (A) Injunctive relief.
   (B) Damages caused by the failure to comply, including interest on
those damages.
   (C) If the failure to comply had a direct relationship upon the
health or safety of an employee, civil penalties as set forth in
Section 6723, except that the penalties shall be reduced by the
amount of any penalties that have been imposed and collected by the
division against the same employer for the same alleged violation as
of the date the civil action is filed.
   (2) Fifty percent of any civil penalties recovered by an employee
in a civil action brought pursuant to this subdivision shall be
distributed to the division, with the remainder distributed to the
employee. The entire amount of any damages recovered by the employee
shall be distributed to the employee.
   (3) Upon a showing in a civil action brought pursuant to this
subdivision of an employer's failure to comply with any provision of
this chapter, including a failure to comply with Section 3395 of
Title 8 of the California Code of Regulations, any prerequisites to
the granting of injunctive relief shall be presumed to be satisfied.
   (4) An employer who is found to have violated any provision of
this chapter, including a failure to comply with Section 3395 of
Title 8 of the California Code of Regulations, in a civil action
brought pursuant to this subdivision shall be designated a high
hazardous industry employer within the meaning of Section 6314.1, and
that designation shall be withdrawn only if the judgment against the
employer is vacated in its entirety.
   (5) An employee who prevails in a civil action brought pursuant to
this subdivision is entitled to an award of reasonable attorney's
fees and costs of suit, including expert witness fees.
   (b) An employee may bring a civil action pursuant to subdivision
(a) against an agricultural entity involved in a farming operation,
including a farm operator, that is a repeat offender.
   (c) The division may bring an administrative proceeding to enforce
this chapter, including an administrative proceeding to enforce
Section 3395 of Title 8 of the California Code of Regulations,
against an agricultural entity involved in a farming operation,
including a farm operator, that is a repeat offender. This
subdivision does not limit or prevent an enforcement action
authorized by any other provision of law.
   (d) For purposes of this section, the acts or omissions of an
agricultural employer shall be imputed to the farm operator on the
real property used in whose farming operation the agricultural
employer was acting at the time of the alleged violation of this
chapter and that farm operator shall be jointly and severally liable
with and to the same extent as the agricultural employer.
   (e) A signed statement obtained by the division from an employee
that is made under penalty of perjury is admissible in an
administrative proceeding brought to enforce this chapter, including
an administrative proceeding brought to enforce Section 3395 of Title
8 of the California Code of Regulations.
   6723.  (a) In a civil action brought by an employee pursuant to
Section 6722, for a violation of subdivision (b) of Section 6721, the
civil penalties shall be as follows:
   (1) For each day on which the violation existed while one or more
employees were working and the temperature did not exceed 80 degrees,
the penalty shall be the product of five hundred dollars ($500)
multiplied by the number of employees on the work crew at the time of
the violation.
   (2) For each day on which the violation existed while one or more
employees were working and the temperature exceeded 80 degrees but
did not exceed 90 degrees, the penalty shall be the product of two
thousand dollars ($2,000) multiplied by the number of employees on
the work crew at the time of the violation.
   (3) For each day on which the violation existed while one or more
employees were working and the temperature exceeded 90 degrees but
did not exceed 100 degrees, the penalty shall be the product of five
thousand dollars ($5,000) multiplied by the number of employees on
the work crew at the time of the violation.
   (4) For each day on which the violation existed while one or more
employees were working and the temperature exceeded 100 degrees, the
penalty shall be the product of ten thousand dollars ($10,000)
multiplied by the number of employees on the work crew at the time of
the violation.
   (5) Notwithstanding paragraphs (1) to (4), inclusive, if the
violation existed during any work shift when any employee suffered
heat illness, the penalty shall be not less than fifty thousand
dollars ($50,000).
   (6) Notwithstanding paragraphs (1) to (4), inclusive, no penalty
shall exceed two hundred thousand dollars ($200,000).
   (b) (1) In a civil action brought by an employee pursuant to
Section 6722, except as otherwise provided in paragraph (2), for a
violation of subdivision (c) of Section 6721, civil penalties shall
be imposed in the amount of five hundred dollars ($500) multiplied by
the number of days the violation existed while employees were
working.
   (2) The penalty described in paragraph (1) shall not exceed ten
thousand dollars ($10,000).
   (c) (1) A civil penalty imposed and calculated pursuant to
subdivision (a) or (b) may be reduced by as much as 50 percent, if
the violation did not exist during a work shift when an employee
suffered heat illness. A reduction shall be based on the facts and
circumstances of the violation, including the following
considerations:
   (A) The culpability of the employer.
   (B) Whether an employee lacked access to water or shade at any
time while the violation existed.
   (C) The size, sophistication, and financial strength of the
employer.
   (D) The employer compliance history related to heat illness.
   (E) The degree of injury caused by the employer's current or past
violations.
   (F) Any efforts by an employee or other person to secure the
employer's compliance through means other than litigation.
   (G) Any expenses incurred by employees, the division, and others
in investigating the employer's compliance.
   (2) The employer has the burden of proving the existence of facts
justifying a reduction of the penalty pursuant to this subdivision.
  SEC. 4.  The provisions of this act are severable. If any provision
of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
  SEC. 5.  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.