BILL ANALYSIS Ó
AB 1277
Page 1
Date of Hearing: May 8, 2013
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
AB 1277 (Skinner) - As Amended: April 18, 2013
Policy Committee: Labor and
Employment Vote: 5-2
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill revises statute governing the issuance and
adjudication of citations for alleged violations of occupational
safety and health laws. Specifically, this bill:
1)Provides an affected employee with a right to due process when
a permanent variance from a standard or order is sought, and
requires the employer to post a notice of the variance.
Further requires the employer to provide the notice by
certified mail to each collective bargaining agent who
represents an employee.
2)Requires the Occupational Safety and Health Appeals (OSHA)
Board, when adjudicating appeals, to: (a) apply the
regulations adopted by the Department of Industrial Relations
(DIR) regarding occupational safety and health, and (b)
liberally construe current law (including the standards
adopted by DIR and the OSHA Board) to promote safe and healthy
working conditions.
3)Modifies the existing complaint process to alter timelines for
investigation, and authorizes additional individuals to
initiate a complaint, including a family member of an employee
or former employee, and a joint-labor-management committee
established under federal law.
4)Requires the Division of Occupational Safety and Health (DOSH)
to issue citations for violations of relevant provisions of
the Labor Code regulating occupational safety in addition to
current authority for citations issued under the Health and
Safety Code.
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5)Revises provisions relating to the issuance of a fine for
failure to report a serious injury or illness, or death,
including reducing or increasing the current civil penalty of
$5,000 (but not less than $2,500) if the employer meets
specified conditions.
FISCAL EFFECT
Annual, on-going costs of $420,000 to the Department of
Industrial Relations (houses the OSHA Board and DOSH) to hire
additional staff to accommodate increased caseload due to the
requirements of this measure.
SUMMARY CONTINUED
6)Authorizes any affected employee to appeal the terms and
conditions of abatement in a citation or notice, if a notice
of appeal is filed by specified parties.
7)Requires the OSHA Board, upon a timely request, to permit
specified individuals to participate as a party in an appeal,
including an affected employee, a union that represents and
affected employee, and a union that has a collective
bargaining agreement with the employer, as specified. Further
requires parties to have a right to participate in settlement
discussions between DOSH and the employer, as specified.
8)Authorizes any person aggrieved directly or indirectly by any
final order or decision made by the OSHA Board to petition,
within 30 days of the final order, the appeals board for
reconsideration. Further requires a person who is not a party
to the case prior to the appeals board issuing the decision
after reconsideration, as specified.
COMMENTS
1)Background . 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. DOSH (also known as Cal/OSHA),
is charged with enforcing occupational health and safety laws,
orders, and standards, including the investigation of alleged
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violations of those provisions.
The OSHA Board 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.
After review and/or a hearing, the OSHA 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.
2)Purpose . Over the past several years, organizations and
workers have expressed concerns regarding the enforcement
procedures conducted by the OSHA Board. For example, in June
2009, 47 DOSH employees wrote a letter to the OSHA 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 were the effects of the actions taken by the 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 allege the combination of these factors result
in a situation where unscrupulous employers can utilize the
appellate process to delay enforcement of the law designed to
protect workers.
According to the author, "The California Occupational Safety
and Health program is designed to protect the working men and
women of California. However, current practices and procedures
do not assure that workers, their families, and their
representatives always have the right and ability to
meaningfully participate."
This bill makes a number of changes to statute governing
citations and appeals, as specified.
3)Opposition . Numerous business groups oppose this measure,
including the California Chamber of Commerce (CCC).
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Specifically, the CCC argues the bill establishes confusing
and duplicative provisions, which creates liability for
employers in determining new requirements. The opponents also
raise concerns with several provisions of the bill, including
the following:
a) Citation authority for alleged statutory violations.
Opponents argue this language will create legal issues for
which there is no guiding case law and no demonstrated need
for a change to existing law governing citations. They
contend the state's long standing practice has been to
establish broad intent and allow the OSHA Board to
implement the intent through regulation. Specifically, the
process has been to issue violations based on regulatory
authority and the change to statutory authority will likely
create excess litigation.
b) Expansion of the definition of who can represent
deceased employees in the appeal process. Opponents
contend the expansion of this definition is in direct
conflict with regulations the OSHA Board adopted. The
board convened stakeholder meetings to inform them in their
decision-making process about who can represent deceased
employees and as such, there is not a need for this change.
4)Previous legislation . AB 829 (DeSaulnier), introduced in
2011, was similar to this measure. However, the author
amended this bill to address a different subject area.
Analysis Prepared by : Kimberly Rodriguez / APPR. / (916)
319-2081