BILL ANALYSIS Ó
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