BILL ANALYSIS �
Senate Committee on Labor and Industrial Relations
William W. Monning, Chair
Date of Hearing: June 12, 2013 2013-2014 Regular
Session
Consultant: Gideon L. Baum Fiscal:No
Urgency: No
Bill No: AB 1165
Author: Skinner
As Introduced/Amended: May 1, 2013
SUBJECT
Occupational safety and health: violations.
KEY ISSUE
Should the Legislature require that the Occupational Safety and
Health Appeals Board (OSHAB) may only stay the abatement of a
serious, willful or repeat violation if the employer has a high
likelihood of successfully contesting the violation and that
staying the abatement does not adversely impact the health or
safety of employees?
ANALYSIS
Existing law provides the California Occupational Safety and
Health Act of 1973 for the purpose of assuring safe and
healthful working conditions for all California working men and
women by authorizing the enforcement of effective standards,
assisting and encouraging employers to maintain safe and
healthful working conditions, and by providing for research,
information, education, training, and enforcement in the field
of occupational safety and health.
(Labor Code �6300)
Existing law provides that the Division of Occupational Safety
and Health (DOSH) may, among other things, require the
performance of any act which the protection of the life and
safety of the employees in places of employment reasonably
demands through a special order or action order. (Labor Code
�6308)
Existing law provides that if, upon inspection or investigation,
DOSH believes that an employer has violated any standard, rule,
order, or regulation established for workplace safety, DOSH must
issue a citation to the employer. Each citation shall be in
writing and shall describe with particularity the nature of the
violation, including a reference to the provision of the code,
standard, rule, regulation, or order alleged to have been
violated. In addition, the citation shall fix a reasonable time
for the abatement of the alleged violation. (Labor Code �6317)
Existing law provides that if an employer is served with a
citation or special order, the employer may appeal to the
Occupational Safety and Health Appeals Board (OSHAB) within 15
working days from the receipt of the citation or order with
respect to violations alleged by the division, abatement
periods, amount of proposed penalties, and the reasonableness of
the changes required by the division to abate the condition.
(Labor Code �� 6600 & 6600.5)
Existing law also provides that the period specified for
abatement shall not commence running until the date the citation
or notice is received by certified mail and the certified mail
receipt is signed, or if not signed, the date the return is made
to the post office. If DOSH officially and directly delivers the
citation or notice to the employer, the period specified for
abatement shall commence running on the date of the delivery.
(Labor Code �6317)
Existing law provides that, if an employer can show a good-faith
effort to comply with the abatement requirement of a citation,
but the abatement has not been completed because of factors
beyond his reasonable control, DOSH, after an opportunity for a
hearing, must issue an order affirming or modifying the
abatement requirements in such citation. (Labor Code �6319.5)
Existing law defines a "serious violation" as a violation where
DOSH determines that there is a substantial probability that
death or serious physical harm could result from a condition
which exists, or from one or more practices, means, methods,
operations, or processes which have been adopted or are in use
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Senate Committee on Labor and Industrial Relations
in a place of employment. (Labor Code �6309)
Existing California Regulations require that, unless otherwise
specified by statute, all abatement periods and changes required
by the Division are stayed upon the filing of a docketed appeal
with the Appeals Board and remain stayed until withdrawal of the
appeal or a final disposition of the proceeding by the Appeals
Board. (California Code of Regulations Title 8, � 362)
This bill would provide that any appeal of a citation or special
order that is classified and cited as a serious violation, a
willful violation, a repeated serious violation, or a failure to
abate a serious violation may not stay the abatement dates
unless :
1) The employer requests a stay of abatement for a citation
or notice of civil penalty classified as a serious
violation, willful violation, repeated serious violation,
or failure to abate a serious violation in a notice of
appeal; and
2) The department 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 on a request for a stay of abatement shall be final
unless the employer renews the request for a stay of abatement
in a direct appeal of the redetermination to the board.
This bill would also provide that the department may stay an
abatement requirement while a motion to stay an abatement is
pending.
COMMENTS
1. AB 1165 and Occupational Safety and Health Appeals Board
Regulations:
As noted above, existing law allows employers to contest
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Senate Committee on Labor and Industrial Relations
citations or special orders issues by the Division of
Occupational Safety and Health (DOSH). However, under
Occupational Safety and Health Appeals Board (OSHAB)
regulations (8 CCR � 362), all abatement activity must be
stayed while an issue is pending before OSHAB. According to
several stakeholders, this can create a situation where
workers continue to work under unsafe conditions while the
appeal is pending.
In an effort to address this concern, OSHAB recently
promulgated regulations, effective July 1, 2013, which would
expedite hearings in order to avoid abatement delays. The
OSHAB regulations create a three-step process once OSHAB is
aware of that an alleged violation is classified by DOSH 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.
1) Within 30 days of an appeal being filed, a telephonic
conference to see, among other things, if an expedited
process is appropriate;
2) Within 60 days of the telephonic conference, the parties
would hold a preconference hearing to, among other things,
stipulate to undisputed facts and identify witnesses and
evidence to be used by both parties.
3) Within 60 days of the preconference hearing, the hearing
itself would be scheduled.
The regulations would also allow OSHAB or a party to bring a
motion to shorten the timeframes discussed above on a showing
of good cause.
2. Why Didn't OSHAB End Automatic Abatement Stays in the Recent
Regulations?
In the initial statement of reasons for the expedited
abatement hearing process, OSHAB said the following:
Alternatives to this rule were proposed by stakeholders,
namely, repeal of the automatic stay provision. However, such
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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.? 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.
OSHAB also noted that the "great majority of employers who
appeal also voluntarily abate the cited condition" and that
the 4-5 month expedited abatement process was a significant
reduction over the existing process.
3. Washington State Abatement Process :
The author of this bill notes that legislation was signed into
law in April 2011 in the State of Washington creates a similar
process to AB 1165. The law (WAC 296-900-17006) requires that
the employer request from WA's DOSH a stay of abatement for
any violation classified as serious, willful, repeat serious,
or failure to abate serious. WA's DOSH may only abate the
hazard if doing so would not have a negative impact on the
health and safety of impacted workers.
4. Possible Amendments :
Currently, AB 1165 directs the Department of Industrial
Relations to stay the abatement of an occupational hazard.
However, it is the Division of Occupational Safety and Health
which orders the abatement and the Occupational Safety and
Health Appeals Board which would order a stay of abatement.
As such, the bill requires further clarification.
One such model could be the Washington State abatement
process. As discussed above, Washington requires employers to
abate hazards, but it allows the Division of Occupational
Safety and Health to allow for a stay. The Washington State
model does not address special orders, though the Committee is
unaware of any special order being classified as a serious
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violation.
Therefore, the Committee may wish to make the following
amendments:
On page 2, line 12, strike "An appeal" and insert "When either
abatement is on appeal or abatement has not occurred, an
appeal";
On page 2, line 13, strike "or a notice of proposed penalty
under this part,"
On page 2, lines 14 and 15, strike "a serious violation, a
willful violation, a repeated violation, or a failure to abate
a serious violation" and insert "Serious violation, Repeat
Serious violation, Willful Serious violation, Willful
violation, or Willful Repeat violation, or Failure to Abate";
On page 2, line 16, strike "except as follows";
On page 2, line 17, after "abatement" insert "from the
division.";
On page 2, line 17, strike "for a citation" and strike lines
18 to 20;
On page 2, line 21, strike "department" and insert "division";
On page 2, line 21 and 22, "a serious violation, a willful
violation, a repeated violation, or a failure to abate a
serious violation" and insert "Serious violation, Repeat
Serious violation, Willful Serious violation, Willful
violation, or Willful Repeat violation, or Failure to Abate"
On page 2, line 23, strike "department" and insert "division";
On page 2, strike line 26 and "employer on the contested
matters and" on line 27;
On page 2, line 28, strike "The decision" and strike lines 29
to 31;
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Senate Committee on Labor and Industrial Relations
On page 2, line 32, strike "department" and insert "division";
On page 2, between lines 34 and 35, insert "(d) The employer
may request an expedited appeal from the appeals board and the
appeals board shall conduct an expedited hearing pursuant to
regulations promulgated by the OSHAB in Title 8 California
Code of Regulations Section 373."
On page 2, strike lines 35 to 38; and
Strike page 3.
5. Proponent Arguments :
Proponents note that if an employer appeals the citation
existing law stays all hazard abatement during the appeal. The
appeal is resolved through a hearing before the Occupational
Safety and Health Appeals Board (OSHAB), which proponents note
can occur months or years after the citation is issued and a
hazard identified. Proponents argue that AB 1165 requires an
employer to abate any safety violations cited as "serious,"
"willful," or "repeat" as required by DOSH, even during an
employer's appeal. Proponents believe that AB 1165 ensures
places of employment can be safe without having to wait for
the completion of the often timely appeals process.
6. Opponent Arguments :
Opponents argue that AB 1165 reverses the right of an employer
to stay abatement while an appeal of the citation is pending.
It requires an employer to specifically request a stay when
filing an appeal of a serious, willful, repeat, or failure to
abate citation. Opponents also note that the construction of
AB 1165 is confusing and unclear. Opponents also argue that
AB 1165 would require employers to specifically contest
abatement where it would otherwise be stayed, creating two
appeals where currently there is one to consider the merit of
abatement as well as the merit of the contested citation.
Opponents argue that the expedited appeal process has been
created specifically to address this situation, making AB 1165
unnecessary.
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Senate Committee on Labor and Industrial Relations
7. Prior Legislation :
AB 1988 (Swanson) of 2008 would have provided that an
abatement measure required by DOSH shall not be stayed pending
an employer's 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. AB 1988 was held in the Senate Committee on
Appropriations.
SUPPORT
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Healthy Nail Salon Collaborative
California Nurses Association
California Rural Legal Assistance Foundation
California Teamsters Public Affairs Council
Centro Legal de La Raza
Employee Rights Center
Engineers and Scientists of California, IFPTE Local 20, AFL-CIO
International Longshore and Warehouse Union
Legal Aid Society-Employment Law Center
Professional and Technical Engineers, IFPTE Local 21, AFL-=CIO
Southern California Coalition for Occupational Safety & Health
State Building and Construction Trades Council of California
United Food and Commercial Workers Western States Council
UNITE-HERE, AFL-CIO
Utility Workers Union of America
Worksafe
OPPOSITION
Acclamation Insurance Management Services
Agricultural Council of California
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 Association of Joint Powers Authorities
Hearing Date: June 12, 2013 AB 1165
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Senate Committee on Labor and Industrial Relations
California Business Properties Association
California Chamber of Commerce
California Chapter of American Fence Association
California Construction and Industrial Materials Association
(CalCIMA)
California Farm Bureau Federation
California Fence Contractors Association
California Framing Contractors Association
California Grocers Association
California League of Food Processors
California Lodging Industry Association
California Manufacturers and Technology Association
California Professional Association of Specialty Contractors
California Restaurant Association
California Retailers Association
Construction Employers' Association
Desert Hot Springs Chamber of Commerce and Visitors Center
Engineering Contractors' Association
Flasher Barricade Association
Fullerton Chamber of Commerce
Irvine Chamber of Commerce
Marin Builders Association
National Federation of Independent Business
Palm Desert Chamber of Commerce
Plumbing-Heating-Cooling Contractors Association of California
Residential Contractor's Association
San Gabriel Valley Regional Chamber of Commerce
Walter & Prince, LLP
Western Electrical Contractors Association
Western Growers Association
Western States Petroleum Association
Western Steel Council
Hearing Date: June 12, 2013 AB 1165
Consultant: Gideon L. Baum Page 9
Senate Committee on Labor and Industrial Relations