BILL ANALYSIS �
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THIRD READING
Bill No: AB 1165
Author: Skinner (D), et al.
Amended: 9/3/13 in Senate
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMMITTEE : 4-0, 6/12/13
AYES: Monning, Leno, Padilla, Yee
SENATE APPROPRIATIONS COMMITTEE : 5-2, 8/30/13
AYES: De Le�n, Hill, Lara, Padilla, Steinberg
NOES: Walters, Gaines
ASSEMBLY FLOOR : 47-19, 5/16/13 - See last page for vote
SUBJECT : Occupational safety and health: violations
SOURCE : Author
DIGEST : This bill requires 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:
1.Provides the California Occupational Safety and Health Act of
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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.
2.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.
3.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.
4.Provides that if an employer is served with a citation or
special order, the employer may appeal to 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.
5.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.
6.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,
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must issue an order affirming or modifying the abatement
requirements in such citation.
7.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
in a place of employment.
8.Requires that, unless otherwise specified by statute, all
abatement periods and changes required by the DOSH are stayed
upon the filing of a docketed appeal with the OSHAB and remain
stayed until withdrawal of the appeal or a final disposition
of the proceeding by the OSHAB.
This bill:
1.Prohibits, when either abatement is on appeal or abatement has
not occurred, an appeal of a citation or notice that is
classified and cited as a serious violation, repeat serious
violation, willful serious violation, or failure to abate, the
staying of the abatement dates and requirements.
2.Provides an employer may request a stay of abatement.
3.Requires DOSH shall stay the abatement for a serious
violation, repeat serious violation, willful serious
violation, or failure to abate, 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.
4.Allows DOSH to stay an abatement requirement while a motion to
stay an abatement is pending.
5.Provides the employer may request an expedited appeal from the
appeals board and the appeals board shall conduct an expedited
hearing pursuant to regulations adopted by the appeals board
pursuant to Section 373 of Title 8 of the California Code of
Regulations.
Comments
Washington State (WA) Abatement Process . The author notes that
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legislation signed into law in April 2011 in WA 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee, DIR estimates
that it would incur annual costs of $1.1 million (special funds)
to implement the provisions of this bill.
SUPPORT : (Verified 9/4/13)
Asian Pacific Environmental Network
California Association of Psychiatric Technicians
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Healthy Nail Salon Collaborative
California Labor Federation
California Nurses Association
California Rural Legal Assistance Foundation
California State Association of Electrical Workers
California State Pipe Trades Council
California Teamsters
Centro Legal de La Raza
Engineers and Scientists of California, IFPTE Local 20, AFL-CIO
International Longshore and Warehouse Union
Legal Aid Society-Employment Law Center
National Lawyers Guild Labor & Employment Committee
Professional Technical Engineers, IFPTE Local 21, AFL-CIO
Southern California Coalition for Occupational Safety & Health
State Building and Construction Trades Council
United Food and Commercial Workers Western States Council
UNITE-HERE, AFL-CIO
Utility Workers Union of America
Watsonville Law Center
Western States Council of Sheet Metal Workers
Worksafe
OPPOSITION : (Verified 9/3/13)
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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
California Business Properties Association
California Chamber of Commerce
California Chapter of American Fence Association
California Construction and Industrial Materials Association
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
Chambers of Commerce: Brea, Camarillo, El Centro, Fullerton,
Goleta, Greater Conejo Valley, Irwindale, Irvine, Long Beach,
Oxnard, Palm Desert, Rancho, Redondo, San Gabriel Valley
Regional, and Simi Valley
Construction Employers' Association
Desert Hot Springs Chamber of Commerce and Visitors Center
Engineering Contractors' Association
Flasher Barricade Association
Marin Builders Association
National Federation of Independent Business
Orange County Business Council
Plumbing-Heating-Cooling Contractors Association of California
Residential Contractor's Association
Southwest California Legislative Council
Walter & Prince, LLP
Western Electrical Contractors Association
Western Growers Association
Western States Petroleum Association
Western Steel Council
ARGUMENTS IN SUPPORT : Proponents note that if an employer
appeals the citation existing law stays all hazard abatement
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during the appeal. The appeal is resolved through a hearing
before OSHAB, which proponents note can occur months or years
after the citation is issued and a hazard identified.
Proponents argue that this bill 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.
ARGUMENTS IN OPPOSITION : 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.
ASSEMBLY FLOOR : 47-19, 5/16/13
AYES: Alejo, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra,
Bonilla, Bonta, Bradford, Brown, Ian Calderon, Campos, Chau,
Ch�vez, Chesbro, Cooley, Dickinson, Eggman, Fong, Fox,
Frazier, Garcia, Gatto, Gomez, Gordon, Hall, Roger Hern�ndez,
Jones-Sawyer, Levine, Lowenthal, Medina, Mitchell, Mullin,
Muratsuchi, Nazarian, Pan, Quirk, Quirk-Silva, Rendon,
Skinner, Ting, Torres, Weber, Wieckowski, Williams, Yamada,
John A. P�rez
NOES: Achadjian, Bigelow, Conway, Dahle, Donnelly, Gorell,
Hagman, Harkey, Jones, Linder, Logue, Maienschein, Mansoor,
Nestande, Olsen, Patterson, Salas, Waldron, Wilk
NO VOTE RECORDED: Allen, Buchanan, Daly, Beth Gaines, Gray,
Grove, Holden, Melendez, Morrell, Perea, V. Manuel P�rez,
Stone, Wagner, Vacancy
PQ:ej 9/4/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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