BILL ANALYSIS �
AB 1165
Page 1
Date of Hearing: May 8, 2013
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hern�ndez, Chair
AB 1165 (Skinner) - As Amended: May 1, 2013
SUBJECT : Occupational safety and health: violations:
abatement.
SUMMARY : Enacts various provisions of law related to an
employer's obligation to abate an alleged hazard pending appeal
of a citation. Specifically, this bill :
1)Provides that an appeal of a citation or notice or special
order that is classified and cited as a serious violation, a
willful violation, a repeated violation, or a failure to abate
a serious violation shall not stay the abatement dates and
requirements except as follows:
a) An employer may request a stay of abatement in a notice
of appeal.
b) The Division of Occupational Safety and Health (DOSH)
shall stay the abatement if it determines that there is a
substantial likelihood of success by the employer on the
contested matters and that a stay will not adversely affect
the health and safety of employees. The decision to stay
an abatement will be final unless the employer renews the
request for a stay of abatement in a direct appeal of the
redetermination to the board.
2)Provides that DOSH may stay the abatement requirement while a
motion to stay abatement is pending.
FISCAL EFFECT : Unknown
COMMENTS : This bill deals with an employer's obligation to
abate a violation pending an employer's appeal to the
Occupational Safety and Health Appeals Board (OSHAB). Under
current law, DOSH may issue a citation or notice of proposed
penalty to an employer if it determines that the employer has
violated existing law. The citation is required to be in
writing and describe with particularity the nature of the
violation. The citation is also required to fix a reasonable
time for the abatement of the alleged violation. An employer
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may appeal the citation by filing an appeal with the Board
within 15 days of the receipt of the citation. However, there
is generally no obligation for an employer to abate the alleged
violation while the appeal is pending.
In recent years, worker advocates and other stakeholders have
raise concern that, since an employer appeal of a citation may
not be heard and ruled upon for months (or even years), this can
lead to workplaces remaining dangerous months after an inspector
has ruled that it is unsafe.
AB 1988 (Swanson) from 2008
The debate around the abatement issue in recent years began with
AB 1988 (Swanson) from 2008. Among other things, AB 1988 would
have required an employer to request a stay of abatement to the
Board (in its appeal) and to make certain showings.
Specifically, AB 1988 provided that an abatement measure
required by DOSH would not be stayed pending an employer appeal
unless the employer indicated by verified petition that it seeks
a stay of abatement and the reasons why abatement is not
necessary to protect the health or safety of employees. The
OSHAB would then schedule a hearing within 30 days (which may be
extended another 30 days in complex cases) and issue a decision
within 10 days. This bill authorized the Board to grant the
stay of abatement where it found either (1) that no employee
will be exposed to the unsafe or unhealthy condition, or (2) or
that the condition is unlikely to cause death, serious injury or
illness, or serious exposure to the employee.
AB 1988 was held under submission in the Senate Appropriations
Committee.
The OSHAB Expedited Appeal Pilot Project
Based on the concerns raised by AB 1988, the OSHAB subsequently
enacted an Expedited Appeal Pilot Project which sought to
expedite appeals for hearings that involved an appeal to an
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abatement order as part of the citation. The goal of this pilot
project was to "fast track" certain appeals where abatement was
an issue in order to minimize the risk of continued exposure to
an alleged violation by workers.
In November 2011 the OSHAB indicated that the pilot project was
discontinued due to lack of resources. However, the pilot
project was reportedly re-instituted at a subsequent date.
SB 829 (DeSaulnier) from 2011
The abatement issue was revisited in SB 829 (DeSaulnier) from
2011. Among other things, SB 829 provided that if an employer
or employee contests the period of time fixed for correction of
a violation (also known as abatement) for a serious or similar
violation, any hearing on that issue shall be conducted as soon
as reasonably possible and shall take precedence over other
hearings conducted by the OSHAB. However, these provisions were
amended out of SB 829 and the bill was used for another purpose.
AB 1277 (Skinner) from 2012
As introduced, AB 1277 (Skinner) would have provided that the
stay of an Administrative Law Judge's order or decision
following an employer's request for reconsideration would not
apply to requirements for abatement. Therefore, the bill would
have ensured that the abatement requirements go into effect upon
the issuance of an ALJ decision even if an employer has asked
for reconsideration. However, this language was recently
deleted from the provisions of AB 1277.
Recent Proposed OSHAB Rulemaking
Recently, the OSHAB has proposed a package of proposed
regulations that, among other things, addresses the abatement
issue. The proposed rulemaking has been completed and is
awaiting final action by the Secretary of State and will be
effective July 1, 2013.
With respect to abatement, the proposed rulemaking amends
Section 373 of the regulations (which governs expedited
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proceedings) to provide the following additional language:
"(b) Where the Appeals Board is aware or is notified that
an alleged violation appealed is
classified by the Division of Occupational Safety & Health
as a Serious, Repeat Serious, Willful Serious, Willful,
Willful Repeat or Failure to Abate, and either abatement is
on appeal, or abatement has not occurred, the Appeals Board
shall expedite the proceeding.
(c) The Appeals Board shall serve parties written
explanation of the expedited process, a
notification of docketing, a copy of the docketed appeal
forms and citations, a standing ordercompelling discovery,
a stipulation form, and a status conference notice.
(1) A telephonic status conference shall be held within 30
days of the docketing of the appeal. At that time, the ALJ
will confirm that the expedited process is appropriate,
review the requirements of the expedited process with the
parties, review pending and impending discovery, and make
such orders regarding any matter as needed to meet the
timetable of this section.
(2) A telephonic prehearing conference shall be held within
60 days of the status conference. The prehearing
conference will proceed under Section 374. The parties will
be required to stipulate to undisputed facts, identify
issues, and raise issues regarding the admissibility of
evidence. The parties shall identify all witnesses and
exhibits they intend to call or introduce at the hearing.
(3) A hearing shall be held within 60 days of the
prehearing conference and will be scheduled for one day and
adjusted, if necessary.
(4) The Appeals Board or a party may bring a motion to
shorten the timeframes set forth in subsections (c)(1) -
(3) on a showing of good cause."
The Initial Statement of Reasons filed by OSHAB accompanying the
proposed rulemaking states the following:
"The purpose of this proposed change is to uniformly
expedite certain types of appeals in order to mitigate the
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delay in abatement that can occur as a result of Rule 362,
which allows for the automatic stay of abatement in every
case.
The problem addressed is the small but meaningful number of
cases wherein a hazardous condition remains unabated at a
cited employer's workplace pending the resolution of the
appeal. The Labor Code provides an employer the
opportunity to challenge any citation, and the automatic
stay rule (Title 8, section 362) exists to protect
employers from the expense of implementing changes to its
operations (i.e. abatement of an alleged violation) that
ultimately are not required if the citation is successfully
appealed. The automatic stay rule is a Board rule that
preserves Board resources by not requiring adjudication of
the merits of a stay in each case. Such a requirement
would necessitate very different procedures and would
require more resources than the Board currently has
available. Most employers voluntarily abate, as ordered in
a citation, because doing so allows for an abatement credit
of a 50% reduction in the proposed penalty. This allowance
is due to
Director's regulations and is beyond the scope of the
Appeals Board's rulemaking authority.
Alternatives to this rule were proposed by stakeholders,
namely, repeal of the automatic stay provision. However,
such alternative would not be less burdensome and equally
effective. Rather, such would result in employers who
contest the abatement ordered by the Division having no
remedy to obtain a stay other than by seeking one from the
superior court. This is costly for employers and the
Division, which must respond. Another alternative
considered in principle was a shortened procedure for
addressing requests by employers for a stay and the repeal
of the automatic stay. This was not the least costly,
effective alternative, as it would require two hearings in
cases where abatement was contested. A compelling argument
was also made that the merits of ordering a stay turn on
whether the violation occurred, and so any procedure
addressing the merits of a stay requires a hearing on the
merits of the alleged violation. For purposes of allowing
discovery by the parties, reaching the merits consumes
approximately 120 days of time.
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Reason this alternative was selected: Since the great
majority of employers who appeal also voluntarily abate the
cited condition, and since non-serious and regulatory
violations pose less of a danger to employees, staying
abatement in those cases but pushing forward the serious,
willful or repeat cases wherein the employer has not
voluntarily abated effectively isolates the meaningful
contests of the abatement order. This greatly reduces (to
4-5 months maximum) the amount of time employees are
potentially exposed to unabated, serious violations after
the citation is issued. Also, during the pilot project,
abatement occurred in the great majority of appeals that
qualified for this expedited abatement project, resulting
in only one actual hearing during five months of the pilot
project. Thus, the existence of the expedited abatement
procedure motivates employers to abate even if they contest
the underlying violation. This greatly increases the
safety of workers in California but does so with the least
impact on the regulated community and at the least cost to
the Board?
?The benefits of this regulatory addition are that serious,
willful, and repeat violations, wherein abatement has not
occurred, will be processed within 120 days of the filing
of the appeal, and as proven by the pilot program
undertaken by the Appeals Board in 2009, many employers
will elect to voluntarily abate the condition during the
pendency of the appeal to avoid the rapid processing of the
case."
Recent Washington State Legislation
The author of this bill notes that legislation was signed into
law in April 2011 in the State of Washington that requires
employers to correct serious safety violations during any appeal
of a citation issued by the Washington Department of Labor and
Industries.
ARGUMENTS IN SUPPORT :
The author states that this bill will ensure that unsafe
conditions get corrected in a timely manner. This bill requires
an employer to abate a serious, willful, or repeat violation, as
required by DOSH, even during an employer's appeal. Under this
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bill, abatement shall be stayed if DOSH determines that there is
a substantial likelihood of success by the employer on the
contested matters and that a stay will not adversely affect the
health and safety of employees.
In addition, supporters of this bill argue that under current
law, when an employer appeals a citation, hazard abatement is
automatically stayed during the appeal. This means that workers
continue to be exposed to hazardous conditions. Supporters
argue that this bill properly reverses the presumption and
declares that workers exposed to a serious hazard should be
protected during the pendency of an appeal. They contend that
appropriate due process is provided by this bill - the employer
may seek a stay (a review by DOSH and a further review by the
OSHAB). Furthermore, this bill establishes appropriate
parameters to grant a stay of abatement - preliminary evidence
must indicate that the workers are not exposed to a hazard that
will adversely affect the health and safety of employees. The
current system of staying abatement so that workers continue to
be exposed does not assure safe and healthful working
conditions.
The California Nurses Association (CNA) points to two recent
examples that highlight the need for this bill. First, in
December 2009, a hospital was cited for serious and willful
violations that led to the hospitalization of two employees who
were exposed to bacterial meningitis. The hospital appealed the
citation, which was not resolved until May 2010. In another
case, nurses were locked out of the hospital when attempting to
help a gunshot victim who was dropped off at the hospital
driveway. The incident occurred in 2010 and the hospital was
later cited by DOSH for serious violations, including failure to
develop and implement procedures and protocols to protect
exposed employees in a manner that caused unnecessary delay and
potential security exposure to employees. The hospital appealed
the citation, and the citation was not resolved until just this
month, approximately two years after the issuance of the
citation, when the hospital agreed to settle the case. CNA
contends that these cases exemplify the need for legislation to
require employers to immediately abate serious, willful, or
repeat violations rather than allowing hazardous conditions to
continue pending the outcome of an appeal.
ARGUMENTS IN OPPOSITION :
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A coalition of employer groups, including the California Chamber
of Commerce, opposes this measure. Opponents contend that the
requirements for abatement are already grounds for appealing a
citation issued by DOSH. Moreover, DOSH has authority to issue
an Order Prohibiting Use where is concludes a condition, process
or piece of machinery poses an imminent hazard to employee
safety. Requiring employers to specifically context an
abatement where it would otherwise be stayed, will create two
appeals where currently there is one. The creation of a new
ground for appeal concerning abetment is not needed and will
place an unnecessary burden on DOSH, the Appeals Board,
employers, and other parties.
Moreover, opponents note that the Appeals Board has already
adopted regulations to include an expedited appeals process
where abatement is an issue. This new process was adopted based
on a successful pilot project and extensive stakeholder input
over the course of several years.
Opponents state that the merits of ordering a stay of abatement
turn on whether a violation occurred. Therefore, any procedure
addressing the merit of a stay requires a hearing on the merits
of the alleged violation itself. To enable the parties to
exercise their rights to due process, including discovery of
evidence, determining an alleged violation's merit takes about
120 days. The Appeals Board adopted an expedited appeal process
for cases where abatement is at issue that takes 120 to 150
days, or less, greatly reducing the average of ten months an
appeal ordinarily would take.
Furthermore, opponents state that the expedited process not only
hastens cases where abatement is truly at issue, but it also
tends to encourage employers to abate hazards to avoid the
shorter appeals process. In other words, when faced with the
alternatives of either abatement or an expedited appeal, some
employers choose abatement in order to avoid the shorter appeal
process.
REGISTERED SUPPORT / OPPOSITION :
Support
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
California Labor Federation, AFL-CIO
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California Nurses Association
California Teamsters Public Affairs Council
Engineers and Scientists of California, Local 20
International Longshore and Warehouse Union
National Lawyers Guild Labor & Employment Committee
Professional and Technical Engineers, Local 21
Southern California Coalition for Occupational Safety & Health
State Building and Construction Trades Council
UNITE HERE
United Food and Commercial Workers Western States Council
Utility Workers Union of America
Opposition
Acclamation Insurance Management Services
Air Conditioning Trade Association
Allied Managed Care
Associated Builders and Contractors of California
Associated General Contractors of California
Associated Roofing Contractors of the Bay Area Counties, Inc.
California Chamber of Commerce
California Chapter of American Fence Association
California Farm Bureau Federation
California Fence Contractors' Association
California Framing Contractors Association
California Grocers Association
California Lodging Industry Association
California Manufacturers and Technology Association
California Professional Association of Specialty Contractors
California Retailers Association
Engineering Contractors' Association
Flasher Barricade Association
Marin Builders Association
National Federation of Independent Business
Plumbing-Heating-Cooling Contractors Association of California
Residential Contractor's Association
Walter & Prince, LLP
Western Electrical Contractors Association
Western Growers Association
Western Steel Council
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
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