Amended in Senate August 18, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1634

Introduced by Assembly Member Skinner

(Principal coauthor: Senator Hancock)

(Coauthors: Assembly Members Ammiano, Bonta, Gonzalez, Quirk, Ting, and Wieckowski)

February 10, 2014

An act to amend begin delete Section 6600 end delete begin insert Sections 6319, 6320, and 6625 end insert of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1634, as amended, Skinner. Occupational safety and health: violations.

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 a citation for a violation of those laws, including violations that regulations adopted by the division classify as serious, repeat, or willful violations. begin insert Existing law authorizes the division to propose appropriate modifications concerning the characterization of violations and corresponding modifications to civil penalties for violations. Existing law requires the division, if a serious violation is not abated at the time of the initial or subsequent inspection, to require the employer to submit a signed statement under penalty of perjury that he or she has complied with the abatement terms within the period fixed for abatement of the violation. end insert Existing law establishes the Occupational Safety and Health Appeals Board in the department, and prescribes procedures for the appeals board to hear and decide appeals of a citation. Regulations adopted by the appeals board generally stay the abatement period of a citation until the conclusion of the appeal.

This bill would prohibit the begin insert division from granting a proposed modification to civil penalties for abatement or credit for abatement unless the employer has submitted a statement to the division in accordance with existing law, and would additionally require supporting evidence with the statement. The bill would prohibit the division from granting such a modification unless the signed statement and supporting evidence is received within 10 days after the end of the period fixed for abatement. The bill would generally prohibit the end insert stay begin insert or suspension end insert of an abatement period during the pendency begin insert before the appeals board end insert of begin delete an appeal end delete begin insert a petition for reconsideration end insert of a citation for a violation that is classified as a serious violation, repeat serious violation, or willful serious violation. The bill would, however, authorize the begin delete division end delete begin insert appeals board end insert to stay begin delete these abatement periods, upon request, end delete begin insert or suspend an abatement, upon petition by the employer, end insert if the begin delete division determines that a stay end delete begin insert if the employer demonstrates that a stay or suspension end insert will not adversely affect the health and safety of employees.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 6319 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

6319.  

(a) If, after an inspection or investigation, the division
issues a citation pursuant to Section 6317 or an order pursuant to
Section 6308, it shall, within a reasonable time after the termination
of the inspection or investigation, notify the employer by certified
mail of the citation or order, and that the employer has 15 working
days from receipt of the notice within which to notify the appeals
board that he or she wishes to contest the citation or order for any
reason set forth in Section 6600 or 6600.5.

(b) Any employer served by certified mail with a notice of civil
penalty may appeal to the appeals board within 15 working days
from receipt of that notice for any reason set forth in Section 6600.
If the citation is issued for a violation involving the condition or
operation of any machine, device, apparatus, or equipment, and a
person other than the employer is obligated to the employer to
repair the machine, device, apparatus, or equipment and to pay
any penalties assessed against the employer, the other person may
appeal to the appeals board within 15 working days of the receipt
of the citation by the employer for any reasons set forth in Section
6600.

(c) The director shall promulgate regulations covering the
assessment of civil penalties under this chapter which give due
consideration to the appropriateness of the penalty with respect to
the following factors:

(1) The size of the business of the employer being charged.

(2) The gravity of the violation.

(3) The good faith of the employer, including timely abatement.

(4) The history of previous violations.

(d) Notwithstanding subdivision (c), if serious injury, illness,
exposure, or death is caused by any serious, willful, or repeated
violation, or by any failure to correct a serious violation within the
time permitted for its correction, the penalty shall not be reduced
for any reason other than the size of the business of the employer
being charged. Whenever the division issues a citation for a
violation covered by this subdivision, it shall notify the employer
of its determination that serious injury, illness, exposure or death
was caused by the violation and shall, upon request, provide the
employer with a copy of the inspection report.

(e) The employer shall not be liable for a civil penalty under
this part for any citation issued by a division representative
providing consulting services pursuant to Sections 6354 and 6355.

(f) Whenever a citation of a self-insured employer for a willful,
or repeat serious violation of the standard adopted pursuant to
Section 6401.7 becomes final, the division shall notify the director
so that a hearing may be held to determine whether good cause
exists to revoke the employer’s certificate of consent to self-insure
as provided in Section 3702.

(g) Based upon the evidence, the division may propose
appropriate modifications concerning the characterization of
violations and corresponding modifications to civil penalties as a
result thereof. begin insert The division shall not grant a proposed modification
to civil penalties for abatement or credit for abatement unless the
employer has submitted a signed statement under penalty of perjury
and supporting evidence in accordance with subdivision (b) of
Section 6320. end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 6320 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

6320.  

(a) If, after inspection or investigation, the division
issues a special order, order to take special action, or a citation for
a serious violation, and if at the time of inspection the order is not
complied with or the violation is not abated, the division shall
conduct a reinspection in the following cases:

(1) All inspections or investigations involving a serious violation
of a standard adopted pursuant to Section 6401.7, a special order
or order to take special action, serious violations of those orders,
and serious violations characterized as repeat or willful or with
abatement periods of less than six days. These reinspections shall
be conducted at the end of the period fixed for compliance with
the order or abatement of the violation or within 30 days thereafter.

(2) At least 20 percent of the inspections or investigations
involving a serious violation not otherwise scheduled for
reinspection. These inspections shall be randomly selected and
shall be conducted at the end of the period fixed for abatement of
the violation or within a reasonable time thereafter.

(b) Whenever a serious violation is not abated at the time of the
initial or subsequent inspection, the division shall require the
employer to submit a signed statement begin insert with supporting evidence, end insert
under penalty of begin delete perjury end delete begin insert perjury, end insert that he or she has complied with
the abatement terms within the period fixed for abatement of the
violation. begin delete If the statement is not received by the division within
10 working days after the end of the period fixed for abatement,
the division shall revoke any adjustments to the civil penalty based
on abatement of the violation. end delete begin insert The division may grant a
modification pursuant to subdivision (g) of Section 6319 only if
the statement, signed under penalty of perjury, and supporting
evidence are received within 10 days after the end of the period
fixed for abatement. end insert The division shall include on the initial notice
of civil penalty a clear warning of reinspection begin delete and automatic
revocation of any civil penalty adjustments based on abatement end delete
for failure to submit the required statement in the time allotted,
and of an additional, potentially substantial monetary penalty for
failure to abate the violation. If the division fails to receive
evidence of abatement or the statement within 10 working days
after the end of the abatement period, the division shall notify the
employer that the additional civil penalty for failure to abate, as
provided in Section 6430, will be assessed retroactive to the end
of the abatement period unless the employer can provide sufficient
evidence that the violation was abated prior to that date. The
division shall conduct a reinspection of serious violations within
45 days following the end of the abatement period whenever it
still has no evidence of abatement.

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 6625 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

6625.  

begin delete The end delete begin insert (a) end insert begin insert   end insert begin insert Except as provided in subdivision (b), the end insert 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 which it
by order directs, may stay, suspend, or postpone the order or
decision during the pendency of the reconsideration.

begin insert

(b) The filing of a petition for, or the pendency of,
reconsideration of a final order or decision involving a citation
classified as serious, repeat serious, or willful serious may stay
or suspend the order or decision only if the employer demonstrates
by a preponderance of the evidence that a stay or suspension will
not adversely affect the health and safety of employees. The
employer must request a stay or suspension by filing a written,
verified petition with supporting declarations within 10 days after
the filing of the order or decision.

end insert

begin delete

SECTION 1.  

Section 6600 of the Labor Code is amended to
read:

6600.  

(a) An employer served with a citation pursuant to
Section 6317, or a notice of proposed penalty under this part, or
any other person obligated to the employer as specified in
subdivision (b) of Section 6319, may appeal to the appeals board
within 15 working days from the receipt of the citation or notice
with respect to violations alleged by the division, abatement
periods, amount of proposed penalties, and the reasonableness of
the changes required by the division to abate the condition.

(b) (1) An appeal of a citation that is classified as a serious
violation, a repeat serious violation, or a willful serious violation
shall not stay the abatement periods and requirements of the
division, except as provided in paragraph (2).

(2) If a stay of abatement is requested from the division with
respect to an appeal described in paragraph (1), the division may
stay the abatement if the division determines that a stay will not
adversely affect the health and safety of employees.

end delete