BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
AB 1165 (Skinner) - Occupational Safety and Health: Violations
Amended: June 13, 2013 Policy Vote: L&IR 4-0
Urgency: No Mandate: No
Hearing Date: August 30, 2013
Consultant: Robert Ingenito
SUSPENSE FILE. AS PROPOSED TO BE AMENDED
Bill Summary: AB 1165 would 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.
Fiscal Impact: The Department of Industrial Relations (DIR)
estimates that it would incur annual costs of $1.1 million
(special funds) to implement the provisions of the bill.
Background: Under current law, DIR's Division of Occupational
Safety and Health (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 specifically describe the nature of the
violation. Moreover, current law requires the citation to fix a
reasonable time for the abatement of the alleged violation. An
employer may appeal the citation by filing an appeal with OSHAB
within 15 days of receiving the citation. However, there is
generally no obligation for an employer to abate the alleged
violation while the appeal is pending, even if that timeframe
extends for months or even years; consequently, a workplace
could remain dangerous for an extended period after a DOSH
inspector has ruled it to be unsafe.
Proposed Law: 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:
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1) The employer requests a stay of abatement; and
2) DIR 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.
Related 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 this
Committee.
Staff Comments: This bill provides that an appeal, filed by an
employer from a workplace safety or health citation or notice
for failure to abate (correct) or for a violation that is
classified as serious, repeat serious, willful, willful serious
or willful repeat, does not automatically stay the requirements
to abate the hazard that caused the citation or notice. DOSH
must stay the abatement measures if it determines a stay will
not adversely affect the health and safety of employees, and has
discretion to stay abatement while a motion to stay abatement is
pending. The employer may request an expedited hearing on the
motion to stay abatement.
Basic due process requires an employer be provided with a
mechanism to be heard prior to taking the employer's property.
The California Code of Regulations set out the existing
procedures for permit denials or when an Order Prohibiting Use
(OPU) is issued. An OPU hearing is required by statute to be
held within 24 hours because the Division has shut down the
employer's equipment or operation. For other hearings, the
regulations provide for a hearing no sooner than five working
days after the request for hearing is received. DOSH expects
many more requests for hearings by employers seeking a stay of
abatement measures than it gets for OPUs or permit denials,
requiring district or regional managers and/or attorneys to act
as hearing officers and to represent the Division in the hearing
process, which will add workload. Determinations that a stay of
abatement would not adversely affect the health and safety of
employees and confirmation of what measures the employer would
provide to ensure worker safety and health would also require
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investigation by the Division and a hearing process, resulting
in additional costs to the Division.
According to DIR, roughly 2,400 serious citations are issued per
year, of which approximately 25 percent (or 600) are unabated.
Of these, DIR estimates that 500 citations would be subject to
this hearing process. Staffing requirements to implement the
bill include attorney (2PY) and field inspector (3.5PY)
positions to verify conditions and claims, as specified, with an
estimate cost of $1.1 million.
Author's Amendments would eliminate two types of violations from
the bill.