BILL ANALYSIS Ó AB 1165 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1165 (Skinner) As Amended September 3, 2013 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |47-19|(May 16, 2013) |SENATE: |23-12|(September 11, | | | | | | |2013) | ----------------------------------------------------------------- Original Committee Reference: L. & E. SUMMARY : Enacts various provisions of law related to an employer's obligation to abate an alleged hazard pending appeal of a citation. The Senate amendments : 1)Specify that the bill applies to an appeal of a citation that is classified as a serious violation, repeat serious violation, willful serious violation, or failure to abate. 2)Specify that an employer may request an expedited appeal from the Occupational Safety and Health Appeals Board (Appeals Board) pursuant to regulations. 3)Delete provisions of the bill related to appeals of special orders. 4)Make other related technical and conforming changes. FISCAL EFFECT : According to the Senate Appropriations Committee, the Department of Industrial Relations estimates that it would incur annual costs of $1.1 million (special funds) to implement the provisions of the bill. 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, 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 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 AB 1165 Page 2 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 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 AB 1165 Page 3 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: 0002301