BILL NUMBER: AB 1634 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 27, 2014
PASSED THE ASSEMBLY AUGUST 28, 2014
AMENDED IN SENATE AUGUST 21, 2014
AMENDED IN SENATE AUGUST 18, 2014
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, 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 granting, for serious
violations, a proposed modification to civil penalties for abatement
or credit for abatement unless the employer has abated the violation,
as specified, or has submitted a statement to the division in
accordance with existing law, and would additionally require
supporting evidence with the statement where necessary. The bill
would authorize the division to grant such a modification only if the
violation has been abated, as specified, or the signed statement and
supporting evidence is received within 10 working days after the end
of the period fixed for abatement. The bill would generally prohibit
the stay or suspension of a requirement to abate the hazards
affirmed by the decision or order 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 would authorize the
appeals board to stay or suspend an abatement, upon petition by the
employer, only if the employer demonstrates that a stay or suspension
will not adversely affect the health and safety of employees.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6319 of the Labor Code is amended to read:
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.
For serious violations, the division shall not grant a proposed
modification to civil penalties for abatement or credit for abatement
unless the employer has done any of the following:
(1) Abated the violation at the time of the initial inspection.
(2) Abated the violation at the time of a subsequent inspection
prior to the issuance of a citation.
(3) Submitted a signed statement under penalty of perjury and
supporting evidence, when necessary to prove abatement, in accordance
with subdivision (b) of Section 6320.
SEC. 2. Section 6320 of the Labor Code is amended to read:
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, with supporting evidence,
where necessary to prove abatement, under penalty of perjury, that he
or she has complied with the abatement terms within the period fixed
for abatement of the violation. The division may grant a
modification pursuant to subdivision (g) of Section 6319 only if the
employer has abated the violation at the time of the initial or
subsequent inspection or the statement, signed under penalty of
perjury, and supporting evidence are received within 10 working days
after the end of the period fixed for abatement. At no time shall the
period for abatement be fixed prior to the issuance of a citation.
The submission of a signed abatement statement shall not be
considered as evidence of a violation during an appeal. The division
shall include on the initial notice of civil penalty a clear warning
of reinspection 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.
SEC. 3. Section 6625 of the Labor Code is amended to read:
6625. (a) (1) Except as provided in subdivision (b), 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.
(2) Except as provided in subdivision (b), 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.
(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 shall not
stay or suspend the requirement to abate the hazards affirmed by the
decision or order unless the employer demonstrates by a preponderance
of the evidence that a stay or suspension of abatement will not
adversely affect the health and safety of employees. The employer
must request a stay or suspension of abatement by filing a written,
verified petition with supporting declarations within 10 days after
the issuance of the order or decision.