Amended in Senate August 21, 2014

Amended in Senate August 18, 2014

California Legislature—2013–14 Regular Session

Assembly BillNo. 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 Sections 6319, 6320, and 6625 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. 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. 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 division from grantingbegin insert, for serious violations,end insert a proposed modification to civil penalties for abatement or credit for abatement unless the employer hasbegin insert abated the violation, as specified, or hasend insert submitted a statement to the division in accordance with existing law, and would additionally require supporting evidence with the statementbegin insert where necessaryend insert. The bill wouldbegin delete prohibitend deletebegin insert authorizeend insert the divisionbegin delete from grantingend deletebegin insert to grantend insert such a modificationbegin delete unlessend deletebegin insert only if the violation has been abated, as specified, orend insert the signed statement and supporting evidence is received within 10begin insert workingend insert days after the end of the period fixed for abatement. The bill would generally prohibit the stay or suspension ofbegin delete an abatement periodend deletebegin insert a requirement to abate the hazards affirmed by the decision or orderend insert during the pendency before the appeals board of a petition for reconsideration of a citation for a violation that is classified as a serious violation, repeat serious violation, or willful serious violation. The bill wouldbegin delete, however,end delete authorize the appeals board to stay or suspend an abatement, upon petition by the employer,begin insert onlyend insert if the employer demonstrates that a stay or suspension 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:

P2    1

SECTION 1.  

Section 6319 of the Labor Code is amended to
2read:

3

6319.  

(a) If, after an inspection or investigation, the division
4issues a citation pursuant to Section 6317 or an order pursuant to
5Section 6308, it shall, within a reasonable time after the termination
6of the inspection or investigation, notify the employer by certified
7mail of the citation or order, and that the employer has 15 working
8days from receipt of the notice within which to notify the appeals
9board that he or she wishes to contest the citation or order for any
10reason set forth in Section 6600 or 6600.5.

11(b) Any employer served by certified mail with a notice of civil
12penalty may appeal to the appeals board within 15 working days
P3    1from receipt of that notice for any reason set forth in Section 6600.
2If the citation is issued for a violation involving the condition or
3operation of any machine, device, apparatus, or equipment, and a
4person other than the employer is obligated to the employer to
5repair the machine, device, apparatus, or equipment and to pay
6any penalties assessed against the employer, the other person may
7appeal to the appeals board within 15 working days of the receipt
8of the citation by the employer for any reasons set forth in Section
96600.

10(c) The director shall promulgate regulations covering the
11assessment of civil penalties under this chapter which give due
12consideration to the appropriateness of the penalty with respect to
13the following factors:

14(1) The size of the business of the employer being charged.

15(2) The gravity of the violation.

16(3) The good faith of the employer, including timely abatement.

17(4) The history of previous violations.

18(d) Notwithstanding subdivision (c), if serious injury, illness,
19exposure, or death is caused by any serious, willful, or repeated
20violation, or by any failure to correct a serious violation within the
21time permitted for its correction, the penalty shall not be reduced
22for any reason other than the size of the business of the employer
23being charged. Whenever the division issues a citation for a
24violation covered by this subdivision, it shall notify the employer
25of its determination that serious injury, illness, exposure or death
26was caused by the violation and shall, upon request, provide the
27employer with a copy of the inspection report.

28(e) The employer shall not be liable for a civil penalty under
29this part for any citation issued by a division representative
30providing consulting services pursuant to Sections 6354 and 6355.

31(f) Whenever a citation of a self-insured employer for a willful,
32or repeat serious violation of the standard adopted pursuant to
33Section 6401.7 becomes final, the division shall notify the director
34so that a hearing may be held to determine whether good cause
35exists to revoke the employer’s certificate of consent to self-insure
36as provided in Section 3702.

37(g) Based upon the evidence, the division may propose
38appropriate modifications concerning the characterization of
39violations and corresponding modifications to civil penalties as a
40result thereof.begin delete Theend deletebegin insert For serious violations, theend insert division shall not
P4    1grant a proposed modification to civil penalties for abatement or
2credit for abatement unless the employer hasbegin delete submittedend deletebegin insert done any
3of the following:end insert

begin insert

4(1) Abated the violation at the time of the initial inspection.

end insert
begin insert

5(2) Abated the violation at the time of a subsequent inspection
6prior to the issuance of a citation.

end insert

begin insert end insert
7begin insert(3)end insertbegin insertend insertbegin insertSubmittedend insert a signed statement under penalty of perjury and
8supporting evidencebegin insert, when necessary to prove abatement,end insert in
9accordance with subdivision (b) of Section 6320.

10

SEC. 2.  

Section 6320 of the Labor Code is amended to read:

11

6320.  

(a) If, after inspection or investigation, the division
12issues a special order, order to take special action, or a citation for
13a serious violation, and if at the time of inspection the order is not
14complied with or the violation is not abated, the division shall
15conduct a reinspection in the following cases:

16(1) All inspections or investigations involving a serious violation
17of a standard adopted pursuant to Section 6401.7, a special order
18or order to take special action, serious violations of those orders,
19and serious violations characterized as repeat or willful or with
20abatement periods of less than six days. These reinspections shall
21be conducted at the end of the period fixed for compliance with
22the order or abatement of the violation or within 30 days thereafter.

23(2) At least 20 percent of the inspections or investigations
24involving a serious violation not otherwise scheduled for
25reinspection. These inspections shall be randomly selected and
26shall be conducted at the end of the period fixed for abatement of
27the violation or within a reasonable time thereafter.

28(b) Whenever a serious violation is not abated at the time of the
29initial or subsequent inspection, the division shall require the
30employer to submit a signedbegin delete statementend deletebegin insert statement,end insert with supporting
31evidence,begin insert where necessary to prove abatement,end insert under penalty of
32perjury, that he or she has complied with the abatement terms
33within the period fixed for abatement of the violation. The division
34may grant a modification pursuant to subdivision (g) of Section
356319 only ifbegin insert the employer has abated the violation at the time of
36the initial or subsequent inspection orend insert
the statement, signed under
37penalty of perjury, and supporting evidence are received within
3810 begin insertworking end insertdays after the end of the period fixed for abatement.
39begin insert At no time shall the period for abatement be fixed prior to the
40issuance of a citation. The submission of a signed abatement
P5    1statement shall not be considered as evidence of a violation during
2an appeal. end insert
The division shall include on the initial notice of civil
3penalty a clear warning of reinspection for failure to submit the
4required statement in the time allotted, and of an additional,
5potentially substantial monetary penalty for failure to abate the
6violation. If the division fails to receive evidence of abatement or
7the statement within 10 working days after the end of the abatement
8period, the division shall notify the employer that the additional
9civil penalty for failure to abate, as provided in Section 6430, will
10be assessed retroactive to the end of the abatement period unless
11the employer can provide sufficient evidence that the violation
12was abated prior to that date. The division shall conduct a
13reinspection of serious violations within 45 days following the end
14of the abatement period whenever it still has no evidence of
15abatement.

16

SEC. 3.  

Section 6625 of the Labor Code is amended to read:

17

6625.  

(a) begin insert(1)end insertbegin insertend insertExcept as provided in subdivision (b), the filing
18of a petition for reconsideration shall suspend for a period of 10
19days the order or decision affected, insofar as it applies to the
20parties to the petition, unless otherwise ordered by the appeals
21board.begin delete Theend delete

22begin insert(2)end insertbegin insertend insertbegin insertExcept as provided in subdivision (b), theend insert appeals board
23upon the terms and conditions which it by order directs, may stay,
24suspend, or postpone the order or decision during the pendency of
25the reconsideration.

26(b) The filing of a petition for, or the pendency of,
27reconsideration of a final order or decision involving a citation
28classified as serious, repeat serious, or willful seriousbegin delete mayend deletebegin insert shall
29notend insert
stay or suspend thebegin delete order or decision only ifend deletebegin insert requirement to
30abate the hazards affirmed by the decision or order unlessend insert
the
31employer demonstrates by a preponderance of the evidence that a
32stay or suspensionbegin insert of abatementend insert will not adversely affect the health
33and safety of employees. The employer must request a stay or
34suspension begin insertof abatement end insertby filing a written, verified petition with
35supporting declarations within 10 days after thebegin delete filingend deletebegin insert issuanceend insert of
36the order or decision.



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