BILL ANALYSIS Ó
AB 1277
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Date of Hearing: April 24, 2013
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 1277 (Skinner) - As Amended: April 18, 2013
SUBJECT : Occupational safety and health.
SUMMARY : Revises various provisions of law related to the
issuance and adjudication of citations for alleged violation of
occupational safety and health laws. Specifically, this bill :
1)Provides that a hearing or other action on a request from a
permanent or temporary variance from a standard shall be held
after "affected" employees (as defined) or employee
representatives are properly notified.
2)Provides that an affected employee has a right to due process
when a permanent or temporary variance is sought and requires
an employer to post a notice of the variance and provide the
notice to each collective bargaining representative who
represents an employee.
3)Provides that the Occupational Safety and Health Appeals Board
(Appeals Board) shall liberally construe the provisions of
current law in order to promote safe and healthy working
conditions for the working men and women of this state.
4)Provides that the Appeals Board, in adjudicating appeals,
shall apply the regulations adopted by the Department of
Industrial Relations (DIR).
5)Recasts and revises provisions related to the filing of
complaints to, among other things:
a) Specify that complaints may be filed and shall be
investigated (as specified) by an employee or former
employee, an employee or former employee's representative,
a health and safety professional, a government agency
representative, a joint labor-management committee, or an
employer, as specified.
b) Revises the procedures and timeframes for the
investigation of such complaints, as specified.
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6)Specifies that the Division of Occupational Safety and Health
(DOSH) shall also issue citations for alleged violations of
the relevant provisions of the Labor Code, not just DOSH
regulations or standards.
7)Revises provisions of existing law related to a $5,000 penalty
for failure to report a serious injury or illness or death as
follows:
a) Clarifies that the report shall be made immediately, but
no longer than eight hours after the employer knew or
should have known of the death or serious injury or
illness.
b) Specifies that the employer shall inform DOSH of all
information in its possession, as specified, and requires
the employer to inform DOSH if the employee subsequently
dies, as specified.
c) Provides that, if the employer has never been subject to
an inspection or investigation, the penalty may be reduced
to not less than $2,500 if there is documentation of any of
the following:
i) The employer has 10 or fewer employees.
ii) The employer delayed in reporting to DOSH by no more
than 48 hours.
iii) The employer delayed reporting by more than 48
hours, but states under penalty of perjury that specified
other conditions were met.
d) Provides that the penalty may be increased if there is a
finding of any of the following:
i) The employer failed to report a death.
ii) The employer did not provide documentation that the
employee received prompt and adequate first aid, medical
care, or both.
iii) The employer did not provide evidence that it had an
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effective injury and illness prevention program.
iv) The employer previously failed to report a serious
injury or illness or death.
v) The employer interfered with DOSH's investigation,
as specified.
e) Provides that the penalty shall not be decreased if DOSH
determines that the failure to report timely impaired its
investigation or that the employer did not ensure that the
employee received prompt and adequate first aid, medical
care, or both.
f) Provides that, in addition to any other penalty, an
employer who willfully or repeatedly fails to report timely
or who intentionally interferes with DOSH's investigation
shall be subject to other specified existing penalties.
8)Provides that an affected employee (as defined) may appeal the
terms and conditions of abatement in a citation or notice if a
notice of appeal is filed by specified parties.
9)Requires the Appeals Board, upon a timely request as set forth
in its regulations, to permit the following to participate as
a party in an appeal:
a) An affected employee, as specified, including survivors
if the employee is deceased.
b) A union that represents an affected employee.
c) A union that has a collective bargaining agreement with
the employer.
10)Provides that parties shall have the right to participate in
settlement discussions, may express an objection, and shall be
timely informed of any settlement, as specified.
11)Provides that the rules of practice and procedure of the
Appeals Board shall provide for the scheduling of hearings in
a manner designed to minimize inconveniences to DOSH and all
parties and witnesses who are required to attend the hearings.
12)Provides that the rules of practice and procedure of the
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Appeals Board shall provide for the completion of hearings
without significant lapses in time if the hearings are not
completed within the scheduled time.
13)Provides that 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 may
petition the Appeals Board for reconsideration in respect to
any matters determined or covered by the final order or
decision, as specified.
14)Provides that 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 the
decision pursuant to shall provide a written notice to the
appeals board, including a statement that the 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.
15)Provides that he notice and statement shall be filed with the
Appeals Board within 30 days of the order or decision and
shall toll, for 30 days or until the Appeals Board acts,
whichever is sooner, both the finality of the decision after
reconsideration and the filing deadline. 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.
16)Makes other related technical and conforming changes to
existing law.
FISCAL EFFECT : Unknown
COMMENTS : In general, this bill seeks to revise various
provisions regarding citations issued by DOSH, the persons or
entities who are authorized to participate as a party in an
appeal before the Appeals Board, and the procedures that govern
the Appeals Board in hearing and deciding appeals.
General Background on Occupational Safety and Health Law
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With the passage of the Occupational Safety and Health Act of
1970, Congress created the Federal Occupational Safety and
Health Administration (Federal OSHA) as part of the United
States Department of Labor to ensure safe and healthful working
conditions for working men and women by setting and enforcing
standards and by providing training, outreach, education and
assistance. The OSH Act covers employers and their employees
either directly through federal OSHA or through an OSHA-approved
state program. State programs must meet or exceed federal OSHA
standards for workplace safety and health.
The California Occupational Safety and Health Act of 1973 was
enacted to ensure safe and healthful working conditions for all
California workers by, among other things, authorizing the
enforcement of effective standards as well as assisting and
encouraging employers to maintain safe and healthful working
conditions. The Division of Occupational Safety and Health
(DOSH, also known as Cal/OSHA), within the state DIR, is charged
with enforcing occupational health and safety laws, orders, and
standards, including the investigation of alleged violations of
those provisions.
Existing law empowers DOSH to cite an employer if, upon
inspection or investigation, DOSH believes that the employer has
violated safety laws or any standard, rule, order, or regulation
created through existing law. The citation must be in writing
and include the particular nature of the violation and a
reasonable time for the abatement of the alleged violation.
The Appeals Board, also within DIR, is a three-member judicial
body appointed by the Governor and confirmed by the Senate,
which handles appeals from private and public-sector employers
regarding citations issued by DOSH for alleged violations of
workplace safety and health laws. Employers may contest the
existence of violations alleged in a citation, as well as the
amount of any proposed civil penalty, within 15 working days of
its receipt. (Labor Code §6600) After review and/or a hearing,
the Appeals Board must issue a decision, based on findings of
fact, affirming, modifying, or vacating DOSH's citation, order,
or proposed penalty, or directing other appropriate relief.
Recent Oversight of the Appeals Board
In recent years, concerns have been raised regarding some of the
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Appeal Board's operational practices and the effect of these
practices on appeal outcomes. As a result of the concerns
raised by stakeholders, this committee and the Senate Committee
on Labor and Industrial Relations have conducted oversight
hearings on the Appeals Board since 2009. Specifically, critics
expressed concern that the Appeals Board's operational practices
made it harder for DOSH to prosecute employers who violate the
state's workplace health and safety laws and led to the more
frequent use of fine and penalty reductions to settle cases --
many times settling cases that both DOSH and employers otherwise
would not have agreed to.
On June 13, 2009, 47 DOSH employees wrote a letter to the
Appeals Board protesting the board's policies and practices and
demanding that the board "cease and desist" from practices they
believe undermine their ability to protect workers. Among the
concerns raised at the hearings and in the DOSH letter, were the
effects of the actions taken by the Appeals Board to reduce the
backlog of appeals cases such as the scheduling of several
hearings per day involving the same judge and staff, denying or
even ignoring justified continuance requests, the scheduling of
hearings in remote locations -- making it difficult for
witnesses to attend hearings, dismissing cases on
technicalities, and conducting drastic penalty reductions. Some
advocates have alleged that the combination of these factors
have resulted in a situation where unscrupulous employers can
utilize the appellate process to delay enforcement of the law
designed to protect workers.
On September 28, 2010, the Federal Occupational Safety and
Health Administration (Fed-OSHA), within the U.S. Department of
Labor, released an audit highlighting several deficiencies both
at DOSH and the Appeals Board. According to the federal audit,
the state's standards and enforcement policies and procedures
differ significantly from the federal and as a result raise
questions regarding their equivalent effectiveness. Of
particular concern to Fed-OSHA was the appeals process
administered by the Appeals Board which raised serious concerns
about both the procedures and the results of the process.
(Federal Annual Monitoring and Evaluation Report (FAME), U.S.
Department of Labor - Occupational Safety and Health
Administration, 2010).
ARGUMENTS IN SUPPORT :
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According to the author, the Appeals Board's current
procedures are not fully in keeping with the legislative
directive that the purpose of the occupational safety and
health laws and regulations are to promote safe and healthy
working conditions for the working men and women of the
state of California. The author states that this bill will
ensure that California workers are protected, that due
process is accorded to employers, and will make several
technical changes so that workers as well as employers may
participate meaningfully in the appeal process.
Supporters of this bill argue that, although the purpose of the
California Occupational Safety and Health program is to protect
worker safety, current practices and procedures do not assure
that workers, their families, and their representatives always
have the right and ability to meaningfully participate in the
program. They contend that this bill will clarify existing laws
in a number of ways, including the following:
Assure that family members and legal representatives of
a deceased worker may participate as "parties" in
proceedings of the Appeals Board and have all appropriate
rights in those hearings. Families are currently denied
the right to full participation on behalf of a loved one
who has been killed in a workplace incident. This bill
requires employers to notify employees when they seek a
permanent or temporary variance from an DOSH standard or
order.
Assure those worker representatives, such as family
members, unions, or community, worker or legal
organizations, may assist a worker in filing a truly
confidential complaint. Organizations or individuals
assisting an employee must by existing policy divulge the
employee's name to DOSH when filing a complaint (the name
by law must be confidential) in order for the complaint of
a serious hazard to be addressed quickly (within 3 days).
Require the Appeals Board to apply the regulations
issued by the Department of Industrial Relations in the
appeal process.
Clarify that DOSH inspectors may cite violations of
statute (the California State Labor Code) and laws
requiring the posting a workers' comp poster, not just
violations of regulations.
Other supporters argue that this bill will ensure that
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family members and legal representatives of a deceased
worker may participate as parties in proceedings of the
Appeals Board and have all appropriate rights in those
hearings. They state that, unfortunately, families are
currently denied the right to full participation on behalf
of a loved one who has been killed in a workplace incident.
Supporters conclude that, by ensuring that both the "spirit
of the law" and the "letter of the law" are followed, this
bill will protect worker health and safety and to assure a
fair hearing for all.
ARGUMENTS IN OPPOSITION :
A coalition of employer groups, including the California Chamber
of Commerce, opposes this bill and argues that the text of the
bill is confusing and duplicative, creating liability for
employers in ascertaining its requirements. Its language should
be plain and clear rather than appear to be playing a game of
deception for stakeholders in determining the impacts of its
provisions. They raise particular objection to a number of
specific provisions of the bill as follows:
With respect to the language related to the filing and
investigation of complaints, opponents believe the entire
process of prioritizing complaints on the basis of who makes
them is fundamentally flawed. It results in the misdirection of
valuable resources and is at odds with the need to emphasize as
much as possible the prioritization of protecting employees from
the most hazardous conditions to which they are exposed.
Because this bill maintains a three-day response deadline for
serious complaints from a specific list of complainants, it
would divert resources from other situations that may pose more
serious risks to employee safety, but were not delivered to DOSH
via these specified reporting sources. Opponents offer
alternative language that they contend would provide a sensible
and effective approach to complaint inspections.
With respect to language in the bill providing for citation
authority for alleged violations of statute, opponents argue
that this would open up uncharted territory in legal issues for
which there is no guiding case law and no demonstrated need for
this broad overreach of power. The regulatory model California
has followed since the 1970's has been one in which statutes
define purpose and intent broadly so that the Standards Board
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can implement them by regulation. Since the inception of the
California OSHA program, the standard practice has been to cite
violations of regulations, not to cite statutes in the Labor
Code. The process works well; throwing a wildcard into the mix
will create confusion, excess litigation, and distraction from
the mission of DOSH.
With respect to the $5,000 penalty for failure to report,
opponents state that while they appreciate the author's attempt
to clarify the process and provide guidance in issuing penalties
for these violations, they can find no reason that a violation
of this code should be settled differently than all other
citations. It is unjustified and costly to require an employer,
and a representative of DOSH to participate in, and the Appeals
Board to convene an appeal process for the purpose of penalty
reduction rather than simply enabling the DOSH investigator to
apply the penalty adjustment formula per regulation as part of
the citation process. Furthermore, opponents contend that this
bill specifies criteria for penalty reduction that have nothing
to do with the violation in question and should not be
considered for penalty adjustment. They would instead recommend
the Legislature direct the Director of the Department of
Industrial Relations to adopt a pertinent regulation, rather
than insert this level of specificity in statute.
Finally, opponents argue that certain provisions of the bill
create an unjustified and unreasonable expansion of who can
participate in the appeal process as a party. It expands the
definition of who can represent a deceased affected employee in
some Appeals Board proceedings, contrary to a recently adopted
consensus Appeals Board regulation. These provisions redefine
an affected, deceased employee's representative according to the
Probate Code, which has nothing to do with the family having
personal knowledge or a personal, familial and/or emotional
interest in participating in appeal proceedings. These
provisions are clearly crafted to pave the way to a civil
lawsuit.
Opponents note that the Appeals Board convened stakeholder
meetings and reached consensus regarding who may represent a
deceased affected employee as a party to an appeal. The
proposed regulation has been adopted by the Appeals Board,
approved by the Office of Administrative Law and submitted to
the Secretary of State.
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PRIOR LEGISLATION :
The language in this bill is similar, but not identical to,
language that was originally contained in SB 829 (DeSaulnier)
from 2011. However, all of these provisions were amended out of
SB 829 and the bill was used for another purpose.
REGISTERED SUPPORT / OPPOSITION :
Support
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Labor Federation, AFL-CIO
California Rural Legal Assistance Foundation
California Nurses Association
California Teamsters Public Affairs Council
Centro Legal de la Raza
Employee Rights Center
Engineers and Scientists of California
International Longshore & Warehouse Union
La Raza Centro Legal
National Lawyers Guild & Labor Committee
Professional & Technical Engineers, Local 21
SoCalCOSH
State Building and Construction Trades Council of California
UNITE HERE!
United Food and Commercial Workers Union, Western States Council
Utility Workers Union of America, Local 132
Worksafe
Opposition
Air Conditioning Trade Association
Associated Builders and Contractors
Associated General Contractors of California
Associated Roofing Contractors of the Bay Area Counties, Inc.
California Association of Joint Powers Authorities
California Chamber of Commerce
California Chapter of American Fence Association
California Farm Bureau Federation
California Fence Contractors' Association
California Framing Contractors Association
California Hospital Association
California League of Food Processors
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California Lodging Industry Association
California Professional Association of Specialty Contractors
California State Association of Counties
CSAC-Excess Insurance Authority
Engineering Contractors' Association
Flasher Barricade Association
Gerdau Long Steel North America
Marin Builders Association
National Federation of Independent Business
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 Steel Council
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091