BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1165
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 1165 (Skinner)
          As Amended  September 3, 2013
          Majority vote
           
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          |ASSEMBLY:  |47-19|(May 16, 2013)  |SENATE: |23-12|(September 11, |
          |           |     |                |        |     |2013)          |
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           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  








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          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  








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          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