BILL NUMBER: AB 1277 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 18, 2013
AMENDED IN ASSEMBLY APRIL 9, 2013
AMENDED IN ASSEMBLY MARCH 13, 2013
INTRODUCED BY Assembly Member Skinner
(Principal coauthor: Senator DeSaulnier)
FEBRUARY 22, 2013
An act to amend Sections 143.1, 148.5, 6317, 6409.1, 6450,
6601, 6601.5, 6602, 6603, and 6614 , and
6625 of, to add Sections 148.3, 6600.1, 6602.5, 6602.6, and
6626.5 to, and to repeal and add Section 6309 to
of , the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1277, as amended, Skinner. Occupational safety and health:
procedures.
Existing law establishes the Division of Occupational Safety and
Health in the Department of Industrial Relations to enforce
employment safety laws. Existing law authorizes the division to
conduct hearings, inspections, and investigations regarding alleged
violations of employment safety laws and to issue citations to
employers. Existing law establishes the Occupational Safety and
Health Appeals Board in the department and prescribes procedures for
the appeals board to hear and decide employer appeals of the division'
s enforcement actions. Existing law also establishes the Occupational
Safety and Health Standards Board in the department and authorizes
the standards board to adopt, amend, or repeal occupational safety
and health standards and orders , and to grant temporary or
permanent variances from a standard or order upon request
from an employer, and prescribes procedures for the standards
board to conduct a hearing on a request for a permanent variance
from a standard or order upon request from an employer
, as specified.
This bill would revise and recast various provisions regarding the
investigations and citations issued by the division, the persons or
entities who are authorized to participate as parties in an appeal
before the appeals board, the procedures that govern the standards
board in issuing a temporary variance and in conducting a
hearing on a permanent variance, the procedures that govern the
appeals board in hearing, deciding, and reconsidering appeals, and
procedures that govern the judicial review of the appeals board's
decisions. The bill would make other related clarifying and
conforming changes.
Existing law requires an employer to file a complete report of
every occupational injury or occupational illness, as defined, to
each employee that results in lost time beyond the date of the injury
or illness, or that requires medical treatment beyond first aid,
with the department, or if an insured employer, with the insurer.
Under existing law, in every case involving a serious injury or
illness, or death, an additional report is required to be made
immediately by the employer to the division, as specified. Under
existing law, an employer is required to be assessed a civil penalty
not less than $5,000 for a violation of the requirement to make the
additional report to the division.
This bill would authorize the division to increase the penalty in
a settlement or decrease it to no less than $2,500 under specified
conditions, including that the employer has declared, under penalty
of perjury, that it made a timely report to its workers' compensation
carrier or to a state, county, or local fire or police agency and
that it was informed by that entity that the report satisfied the
requirement to report to the division. By expanding the scope of the
crime of perjury, this bill would impose a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 143.1 of the Labor Code is amended to read:
143.1. (a) The board shall conduct a hearing on a request for a
permanent variance after affected employees or employee
representatives are properly notified pursuant to subdivision (b) and
given an opportunity to be heard. All board decisions on permanent
variance requests shall be final except for any rehearing or judicial
review provided for by law.
(b) An affected employee has a right to due process when a
permanent variance from a standard or order is sought pursuant to
Section 143. The employer shall post a notice of the variance
prepared by the board and shall provide that notice by certified
mail to each collective bargaining agent who represents an
employee.
(c) For the purposes of this section, "affected employee" means an
employee who would be affected by the grant or denial of a variance,
limitation, variation, tolerance, or exemption from a standard or
order sought by an employer pursuant to Section 143.
SEC. 2. Section 148.3 is added to the Labor Code, to read:
148.3. In adjudicating appeals, the appeals board shall do both
of the following:
(a) Apply the regulations adopted by the department regarding
occupational safety and health.
(b) Liberally construe the provisions of Division 5 (commencing
with Section 6300), as well as the standards and orders adopted by
the Division of Occupational Safety and Health or the department
pursuant to that division, and the standards and orders adopted by
the Occupational Safety and Health Standards Board pursuant to
Chapter 6 (commencing with Section 140), in order to promote safe and
healthy working conditions for the working men and women of this
state.
SEC. 3. Section 148.5 of the Labor Code is amended to read:
148.5. A decision of the appeals board is final, except for any
rehearing or judicial review as permitted by Chapter 7 (commencing
with Section 6600) of Part 1 of Division 5.
SEC. 4. Section 6309 of the Labor Code is repealed.
SEC. 5. Section 6309 is added to the Labor Code, to read:
6309. (a) If the division learns or has reason to believe that an
employment or place of employment is not safe or is injurious to the
welfare of an employee, the division, on its own motion, or upon
complaint, may summarily investigate the same with or without notice
or hearings.
(b) The division shall investigate and conduct an onsite
inspection of the employment or place of employment as soon as
possible, but not later than three working days after receipt of a
complaint charging a serious violation, except as provided in
subdivision (e), and shall investigate and may conduct an onsite
inspection not later than 14 calendar days after receipt of a
complaint charging a nonserious violation, from the following:
(1) An employee or former employee.
(2) An employee's or former employee's representative, including,
but not limited to, an attorney; a union, workers' organization, or
community organization; or a family member of an employee or former
employee.
(3) A health or safety professional.
(4) A government agency representative.
(5) A joint labor-management committee established pursuant to the
federal Labor Management Cooperation Act of 1978 (Section 175a of
Title 29 of the United States Code).
(6) An employer of an employee who is or may be exposed to an
unsafe or unhealthful condition in his or her employment or at his or
her place of employment.
(c) The division may investigate and conduct an onsite inspection
of a serious violation charged in a complaint from a person other
than those described in paragraphs (1) to (6), inclusive, of
subdivision (b) before investigating any nonserious violation in
order to best effectuate the purposes of this division.
(d) For purposes of this section, a complaint is deemed to allege
a serious violation if the division determines that the complaint
charges that there is a realistic possibility that death or serious
physical harm could result from a condition that exists, or from one
or more practices, means, methods, operations, or processes that have
been adopted or are in use in a place of employment. All other
complaints are deemed to allege nonserious violations.
(e) If a complaint charging a serious violation is received from a
state or local prosecutor, or a local law enforcement agency, the
division shall investigate and conduct an onsite inspection of the
employment or place of employment within 24 hours of receipt of the
complaint.
(f) The division is not required to respond to a complaint within
the time period required by subdivision (b) if the division
determines, from the facts stated in the complaint, that the
complaint is intended to willfully harass an employer or is without
any reasonable basis.
(g) The division shall attempt to determine the period of time in
the future that the complainant believes the unsafe or
unhealthful condition may continue to exist, and shall allocate
inspection resources so as to respond first to those situations in
which time is of the essence.
(h) The division may enter and serve any necessary order relative
to the complaint.
(i) The division shall keep complete and accurate records of all
complaints, whether oral or written, and shall inform the
complainant, whenever his or her identity is known, of any action
taken by the division in regard to the subject matter of the
complaint, and the reasons for the action, within 14 calendar days of
taking any action. The records of the division shall include the
dates on which any action was taken on the complaint, or the reasons
for not taking any action on the complaint. The division, pursuant to
authorized regulations, shall conduct an informal review of any
refusal by a representative of the division to issue a citation with
respect to an alleged violation. The division shall furnish the
employee or the representative of employees requesting the review a
written statement of the reasons for the division's final disposition
of the case.
(j) The division shall keep confidential the name of a person who
submits to the division a complaint regarding the unsafe condition of
an employment or place of employment, unless that person requests
otherwise.
(k) The division shall annually compile and release on its
Internet Web site the data pertaining to complaints received and
citations issued.
( l ) The requirements of this section do not relieve
the division of its requirement to inspect and ensure that all places
of employment are safe and healthful for employees. The division
shall maintain the capability to receive and act upon complaints at
all times.
SEC. 6. Section 6317 of the Labor Code is amended to read:
6317. (a) If, upon inspection or investigation, the division
believes that an employer has violated Section 25910 of the Health
and Safety Code, this division, Article 4 (commencing with Section
3550) of Chapter 2 of Part 1 of Division 4, or any standard, rule,
order, or regulation established pursuant to Chapter 6 (commencing
with Section 140) of Division 1, or any standard, rule, order, or
regulation adopted pursuant to this code regarding occupational
safety and health, it shall, with reasonable promptness, issue a
citation to the employer.
(b) 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. 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 the division 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.
(c) (1) The division may issue a notice in lieu of a citation with
respect to violations found in an inspection or investigation that
meet either of the following requirements:
(A) The violations do not have a direct relationship upon the
health or safety of an employee.
(B) The violations do not have an immediate relationship to the
health or safety of an employee, and are of a general or regulatory
nature. A
(2) A notice in lieu of a
citation may be issued only if the employer agrees to correct the
violations within a reasonable time, as specified by the division,
and agrees not to appeal the finding of the division that the
violations exist. A notice issued pursuant to this paragraph shall
have the same effect as a citation for purposes of establishing
repeat violations or a failure to abate. Every notice shall clearly
state the abatement period specified by the division, that the notice
may not be appealed, and that the notice has the same effect as a
citation for purposes of establishing a repeated violation or a
failure to abate. The employer shall indicate agreement to the
provisions and conditions of the notice by his or her signature on
the notice.
(2)
(3) (A) Under no circumstances shall a notice be issued
in lieu of a citation if the violations are serious, repeated,
willful, or arise from a failure to abate.
(B) The director shall prescribe guidelines for the issuance of a
notice in lieu of citation.
(C) A notice in lieu of a citation shall not be issued if the
number of first instance violations found in the inspection (other
than serious, willful, or repeated violations) is 10 or more
violations.
(d) (1) No citation or notice shall be issued by the division for
a given violation or violations after six months have elapsed since
occurrence of the violation.
(2) The division may impose a civil penalty against an employer as
specified in Chapter 4 (commencing with Section 6423) of this part.
(3) The director shall prescribe procedures for the issuance of a
citation or notice.
(4) The division shall prepare and maintain records capable of
supplying an inspector with previous citations and notices issued to
an employer.
SEC. 7. Section 6409.1 of the Labor Code is amended to read:
6409.1. (a) Every employer shall file a complete report of every
occupational injury or occupational illness, as defined in
subdivision (b) of Section 6409, to each employee that results in
lost time beyond the date of the injury or illness, or that requires
medical treatment beyond first aid, with the Department of Industrial
Relations or, if an insured employer, with the insurer, on a form
prescribed for that purpose by the department. A report shall be
filed concerning each injury and illness that has, or is alleged to
have, arisen out of and in the course of employment, within five days
after the employer obtains knowledge of the injury or illness. Each
report of occupational injury or occupational illness shall indicate
the social security number of the injured employee. In the case of an
insured employer, the insurer shall file with the division,
immediately upon receipt, a copy of the employer's report that has
been received from the insured employer. In the event an employer has
filed a report of injury or illness pursuant to this subdivision and
the employee subsequently dies as a result of the reported injury or
illness, the employer shall file an amended report indicating the
death with the department or, if an insured employer, with the
insurer, within five days after the employer is notified or learns of
the death. A copy of any amended reports received by the insurer
shall be filed with the division immediately upon receipt.
(b) In every case involving a serious injury or illness, or death,
in addition to the report required by subdivision (a), a report
shall be made immediately, but no longer than eight hours after the
employer knew or should have known of the death or serious illness,
by the employer to the Division of Occupational Safety and Health by
telephone, fax, or other electronic means approved by the division.
An employer who violates this subdivision shall be assessed a civil
penalty of five thousand dollars ($5,000) that may be adjusted
pursuant to subdivision (d) either by the division in a settlement
agreement between the employer and the division, or by the
Occupational Safety and Health Appeals Board when approving a
settlement agreement or when making a finding. Nothing in this
subdivision shall be construed to affect the civil penalty that may
be imposed pursuant to Sections 6427 to 6430, inclusive.
(c) When making a report pursuant to subdivision (b), the employer
shall inform the division of all information in its possession
relating to the time, location, and circumstances of the incident.
The employer shall also inform the division if the employee
subsequently dies as a result of the reported injury or illness,
within five days after the employer is notified or learns of the
death.
(d) The If the employer has never been
subject to an inspection or investigation by the division,
the civil penalty assessed pursuant to subdivision (b) may be
adjusted according to the following:
(1) The penalty may be reduced if there is a finding on
documentation in the division file or in the
record of the appeals board of any of the following:
(A) The employer has 10 or fewer employees.
(B) The employer delayed in reporting to the division by no more
than 48 hours.
(C) The employer delayed in reporting to the division by more than
48 hours or failed to report to the division, but states under
penalty of perjury that it did timely report to its workers'
compensation carrier or to a state, county, or local fire or police
agency, and that it was informed by that entity that reporting to
that entity was sufficient to comply with the requirement to report
to the division.
(2) The penalty may be increased if there is a finding on the
record of any of the following:
(A) The employer failed to report a death resulting from
the reported injury or illness .
(B) The employer did not provide documentation that the
injured or ill employee did not receive
received prompt and adequate first aid, medical care, or both.
(C) The employer did not provide evidence that it had an effective
injury and illness prevention program.
(D) The employer previously failed to report a serious injury or
illness, or death.
(E) The employer interfered with the division's investigation by
withholding evidence or witnesses or materially altering the
worksite.
(3) Additional penalty reductions afforded by regulations
promulgated pursuant to subdivision (c) of Section 6319 shall not
apply to the adjustment of the civil penalty assessed pursuant to
subdivision (b).
(4) The penalty shall not be decreased if the division determines
that the failure to report or report timely impaired its
investigation or that the employer did not ensure that the
injured or ill employee received prompt and adequate first aid,
medical care, or both .
(5) The adjusted civil penalty shall not be less than two thousand
five hundred dollars ($2,500).
(e) In addition to any other the
penalty provided in this section , an employer who
willfully or repeatedly fails to report, or to report timely, an
occupational injury or occupational illness, or a death
resulting from a reported injury or illness , as required
by subdivision (b), or an employer who intentionally interferes with
the division's investigation by withholding evidence or witnesses or
materially altering the worksite, shall be assessed a civil
penalty of not more than seventy thousand dollars ($70,000) for each
violation, but in no case less than five thousand dollars ($5,000)
for each willful violation subject to the penalties
set forth in Section 6429 .
SEC. 8. Section 6450 of the Labor Code
is amended to read:
6450. (a) Any An employer may apply
to the division for a temporary order granting a variance from an
occupational safety or health standard. Such
The temporary order shall be granted only if the employer files
an application which meets the requirements of Section 6451, and
establishes that (1) he all of the following:
(1) The employer is unable to
comply with a standard by its effective date because of
unavailability of professional or technical personnel or of materials
and equipment needed to come into compliance with the standard or
because necessary construction or alteration of facilities cannot be
completed by the effective date , (2) he .
(2) The employer is taking all
available steps to safeguard his or her employees against
the hazards covered by the standard , and (3) he
.
(3) The employer has an effective
program for coming into compliance with the standard as quickly as
practicable.
(b) Any A temporary order
issued under this section shall prescribe the practices, means,
methods, operations, and processes which the employer must adopt and
use while the order is in effect and state in detail his or her
program for coming into compliance with the standard.
Such a A temporary order may be granted only
after notice to affected employees pursuant to
subdivision (c) and an opportunity for a hearing. However, the
division may issue one interim order for a temporary variance upon
submission of an application showing that the employment or place of
employment will be safe for employees pending a hearing on the
application for a temporary variance. No A
temporary order may not be in effect for longer than
the period needed by the employer to achieve compliance with the
standard or one year, whichever is shorter, except that such
an order may be renewed not more than twice provided that
the requirements of this section are met and an application for
renewal is filed prior to the expiration date of the order.
No single A renewal of an order may not
remain in effect for longer than 180 days.
(c) An affected employee has a right to due process when a
temporary variance from a standard or order is sought pursuant to
this section. The employer shall post a notice of the variance
prepared by the board and shall provide that notice by certified mail
to each collective bargaining agent who represents an employee.
(d) For the purposes of this section, "affected employee" means an
employee who would be affected by the grant or denial of a variance,
limitation, variation, tolerance, or exemption from a standard or
order sought by an employer pursuant to this section.
SEC. 8. SEC. 9. Section 6600.1 is
added to the Labor Code, to read:
6600.1. Any affected employee may appeal the terms and conditions
of abatement in a citation or notice pursuant to Section 6317 or
order pursuant to Section 6308. A notice of appeal shall be filed
with the division or the appeals board within 15 working days of the
issuance of a citation or order, by any of the following:
(a) An affected employee, individually or through his or her
designated representative, or if the affected employee is deceased,
then the employee's surviving spouse or domestic partner, surviving
issue, or personal representative as defined in Section 58 of the
Probate Code.
(b) A union that represents an affected employee.
(c) A union that has a collective bargaining agreement with the
cited or ordered employer.
(d) For purposes of this chapter, "affected employee" means an
employee who is exposed to or who, due to assigned work in the
vicinity, may be exposed to an unsafe or unhealthful condition out of
circumstances, conditions, practices, or operations that are the
basis of a citation issued by the division to any employer, whether
or not the direct employer of the employee.
SEC. 9. SEC. 10. Section 6601 of the
Labor Code is amended to read:
6601. If, within 15 working days from receipt of the citation or
notice of civil penalty issued by the division, the employer fails to
notify the appeals board that the employer intends to contest the
citation or notice of proposed penalty, and no notice contesting the
terms or conditions of the abatement is filed by any affected
employee or representative of an affected employee within that time,
the citation or notice of proposed penalty shall be deemed a final
order of the appeals board and not subject to review by any court or
agency. The 15-day period may be extended by the appeals board for
good cause.
SEC. 10. SEC. 11. Section 6601.5 of
the Labor Code is amended to read:
6601.5. If, within 15 working days from receipt of a special
order or action order by the division, the employer fails to notify
the appeals board that the employer intends to contest the order, and
no notice contesting the terms or conditions of the abatement is
filed by any affected employee or representative of an affected
employee within that time, the order shall be deemed a final order of
the appeals board and not subject to review by any court or agency.
The 15-day period may be extended by the appeals board for good
cause.
SEC. 11. SEC. 12. Section 6602 of
the Labor Code is amended to read:
6602. If an employer notifies the appeals board that he or she
intends to contest a citation issued under Section 6317, or notice of
proposed penalty issued under Section 6319, or order issued under
Section 6308, or if, within 15 working days of the issuance of a
citation or order any affected employee or representative of an
affected employee files a notice with the division or appeals board
contesting the terms or conditions of the abatement, the appeals
board shall afford an opportunity for a hearing. The appeals board
shall thereafter issue a decision, based on findings of fact,
affirming, modifying, or vacating the division's citation or order,
and may modify the proposed penalty if the penalty modification would
not violate a requirement of this code or a regulation of the
department, or direct other appropriate relief.
SEC. 12. SEC. 13. Section 6602.5 is
added to the Labor Code, to read:
6602.5. The appeals board, upon a timely request
as set forth in its regulations , shall permit the following to
participate as a party in an appeal:
(a) An affected employee, individually or through his or her
designated representative, or if the affected employee is deceased,
then the employee's surviving spouse or domestic partner, surviving
issue, or personal representative as defined in Section 58 of the
Probate Code.
(b) A union that represents an affected employee.
(c) A union that has a collective bargaining agreement with the
cited or ordered employer.
SEC. 13. SEC. 14. Section 6602.6 is
added to the Labor Code, to read:
6602.6. Parties shall have the opportunity to
participate fully in a hearing, receive notices, be permitted to
subpoena witnesses and documents at any time before the completion of
the hearings, offer evidence, examine and cross-examine witnesses,
and argue and submit briefs. Parties representing
an affected employee shall also have the
right to participate and object to terms or conditions
during in settlement discussions between the
division and the employer at any formal or informal prehearing
conference or discussion prior to or during the hearing, may
express an objectio n, and shall be timely informed
of any final settlement reached between the employer and the
division .
SEC. 14. SEC. 15. Section 6603 of
the Labor Code is amended to read:
6603. (a) The rules of practice and procedure adopted by the
appeals board shall be consistent with Article 8 (commencing with
Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2
of, and Sections 11507, 11507.6, 11507.7, 11513, 11514, 11515, and
11516 of, the Government Code, and shall provide affected employees
or representatives of affected employees an opportunity to
participate as parties to a hearing under Section 6602. The rules of
practice and procedure also shall provide for the scheduling of
hearings in a manner designed to minimize inconvenience to the
division and all parties and witnesses who are required to attend the
hearings, and for the completion of the hearings without significant
lapses in time if the hearings are not completed within the
scheduled time.
(b) The superior courts shall have jurisdiction over contempt
proceedings, as provided in Article 12 (commencing with Section
11455.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the
Government Code.
SEC. 15. SEC. 16. Section 6614 of the
Labor Code is amended to read:
6614. (a) At any time within 30 days after the service of any
final order or decision made and filed by the appeals board or a
hearing officer, any party aggrieved directly or indirectly by any
final order or decision, made and filed by the appeals board or a
hearing officer under this division, may petition the appeals board
for reconsideration in respect to any matters determined or covered
by the final order or decision and specified in the petition for
reconsideration. The petition shall be made only within the time and
in the manner specified in this chapter.
(b) At any time within 30 days after the service of any final
order or decision made and filed by the appeals board, any person
aggrieved directly or indirectly by any final order or decision made
and filed by the appeals board under this division may petition the
appeals board for reconsideration in respect to any matters
determined or covered by the final order or decision and specified in
the petition for reconsideration. The petition shall be made only
within the time and in the manner specified in this chapter.
(c) At any time within 30 days after the filing of an order or
decision made by a hearing officer and the accompanying report, the
appeals board may, on its own motion, grant reconsideration.
SEC. 16. Section 6625 of the Labor Code is
amended to read:
6625. The filing of a petition for reconsideration shall suspend
for a period of 10 days the order or decision affected, insofar as it
applies to the parties to the petition, unless otherwise ordered by
the appeals board. The appeals board upon the terms and conditions
that it by order directs, may
stay, suspend, or postpone the order or decision during the
pendency of the reconsideration except as to the requirements for
abatement.
SEC. 17. Section 6626.5 is added to the Labor Code, to read:
6626.5. (a) An affected A person
who was not a party to the case prior to the appeals board issuing
the decision after reconsideration who plans to seek judicial review
of a decision pursuant to Section 6627 shall provide a written notice
to the appeals board, including a statement that the
affected person intends to seek judicial review of the
decision, a brief statement regarding the nature of the challenge to
the decision after reconsideration, and a request that the appeals
board modify or rescind its decision.
(b) The notice and statement shall be filed with the appeals board
within 30 days of the appeals board order or decision and shall
toll, for 30 days or until the board acts, whichever is sooner, both
the finality of the decision after reconsideration and the filing
deadline set forth in Section 6627. After receiving notice, the
appeals board may either rescind, modify, and reissue the decision
after reconsideration, or deny the request either summarily or in
writing with the reasons stating the basis for the denial. The
appeals board's failure to act on the notice within 30 days shall be
deemed a summary denial. An affected person shall not be required to
file more than one notice prior to seeking judicial review.
(c) Nothing in this section is intended to eliminate or limit any
other exceptions to any requirement under law that administrative
remedies be exhausted before judicial action is sought.
SEC. 18. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.