BILL ANALYSIS �
AB 1165
Page 1
ASSEMBLY THIRD READING
AB 1165 (Skinner)
As Amended May 1, 2013
Majority vote
LABOR & EMPLOYMENT 5-2
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|Ayes:|Roger Hern�ndez, Alejo, | | |
| |Chau, Gomez, Ian Calderon | | |
| | | | |
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|Nays:|Morrell, Gorell | | |
| | | | |
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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 Occupational Safety and Health
Appeals Board (Appeals Board).
2)Provides that DOSH may stay the abatement requirement while a
motion to stay abatement is pending.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
AB 1165
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COMMENTS : This bill deals with an employer's obligation to
abate a violation pending an employer's appeal to the Appeals
Board. 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
may appeal the citation by filing an appeal with the Appeals
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.
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
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
Appeals Board). 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.
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 it concludes a condition, process
AB 1165
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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 abatement 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.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
FN: 0000454