BILL ANALYSIS                                                                                                                                                                                                    Ó




                                                                  AB 1634
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          Date of Hearing:   March 19, 2014

                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
                               Roger Hernández, Chair
                AB 1634 (Skinner) - As Introduced:  February 10, 2014
           
          SUBJECT  :   Occupational safety and health: violations:  
          abatement.

           SUMMARY  :   Enacts various provisions of law related to an  
          employer's obligation to abate an alleged hazard pending appeal  
          of a citation.  Specifically,  this bill  :

          1)Provides that an appeal of a citation that is classified and  
            cited as a serious violation, a repeat serious violation, or a  
            willful serious violation shall not stay the abatement periods  
            and requirements.

          2)Provides that if a stay of abatement is requested by the  
            Division of Occupational Safety and Health (DOSH), it may stay  
            the abatement if it determines that a stay will not adversely  
            affect the health and safety of employees.

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   This bill deals with an employer's obligation to  
          abate a violation pending an employer's appeal to the  
          Occupational Safety and Health Appeals Board (OSHAB).  Under  
          current law, DOSH may issue a citation or notice of proposed  
          penalty to an employer if it determines that the employer has  
          violated existing law.  The citation is required to be in  
          writing and describe with particularity the nature of the  
          violation.  The citation is also required to fix a reasonable  
          time for the abatement of the alleged violation.  An employer  
          may appeal the citation by filing an appeal with the OSHAB  
          within 15 days of the receipt of the citation.  However, there  
          is generally no obligation for an employer to abate the alleged  
          violation while the appeal is pending.

          In recent years, worker advocates and other stakeholders have  
          raise concern that, since an employer appeal of a citation may  
          not be heard and ruled upon for months (or even years), this can  
          lead to workplaces remaining dangerous months after an inspector  
          has ruled that it is unsafe.










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           AB 1988 (Swanson) from 2008  

          The debate around the abatement issue in recent years began with  
          AB 1988 (Swanson) from 2008.  Among other things, AB 1988 would  
          have required an employer to request a stay of abatement to the  
          Board (in its appeal) and to make certain showings.   
          Specifically, AB 1988 provided that an abatement measure  
          required by DOSH would not be stayed pending an employer appeal  
          unless the employer indicated by verified petition that it seeks  
          a stay of abatement and the reasons why abatement is not  
          necessary to protect the health or safety of employees.  The  
          OSHAB would then schedule a hearing within 30 days (which may be  
          extended another 30 days in complex cases) and issue a decision  
          within 10 days.  


          AB 1988 authorized the Board to grant the stay of abatement  
          where it found either (1) that no employee will be exposed to  
          the unsafe or unhealthy condition, or (2) or that the condition  
          is unlikely to cause death, serious injury or illness, or  
          serious exposure to the employee.

          AB 1988 was held under submission in the Senate Appropriations  
          Committee.

           The OSHAB Expedited Appeal Pilot Project  

          Based on the concerns raised by AB 1988, the OSHAB subsequently  
          enacted an Expedited Appeal Pilot Project which sought to  
          expedite appeals for hearings that involved an appeal to an  
          abatement order as part of the citation.  The goal of this pilot  
          project was to "fast track" certain appeals where abatement was  
          an issue in order to minimize the risk of continued exposure to  
          an alleged violation by workers.

          In November 2011 the OSHAB indicated that the pilot project was  
          discontinued due to lack of resources.  However, the pilot  
          project was reportedly re-instituted at a subsequent date.  

           SB 829 (DeSaulnier) from 2011
           
          The abatement issue was revisited in SB 829 (DeSaulnier) from  
          2011.  Among other things, SB 829 provided that if an employer  
          or employee contests the period of time fixed for correction of  
          a violation (also known as abatement) for a serious or similar  









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          violation, any hearing on that issue shall be conducted as soon  
          as reasonably possible and shall take precedence over other  
          hearings conducted by the OSHAB.  However, these provisions were  
          amended out of SB 829 and the bill was used for another purpose.

           Recent OSHAB Rulemaking  

          Recently, the OSHAB enacted a package of proposed regulations  
          that, among other things, addresses the abatement issue.  The  
          rulemaking was made effective July 1, 2013.

          With respect to abatement, the rulemaking amended Section 373 of  
          the regulations (which governs expedited proceedings) to provide  
          the following additional language:

               "(b) Where the Appeals Board is aware or is notified that  
          an alleged violation appealed is
               classified by the Division of Occupational Safety & Health  
               as a Serious, Repeat Serious, Willful Serious, Willful,  
               Willful Repeat or Failure to Abate, and either abatement is  
               on appeal, or abatement has not occurred, the Appeals Board  
               shall expedite the proceeding.

               (c) The Appeals Board shall serve parties written  
          explanation of the expedited process, a
               notification of docketing, a copy of the docketed appeal  
               forms and citations, a standing ordercompelling discovery,  
               a stipulation form, and a status conference notice.

               (1) A telephonic status conference shall be held within 30  
               days of the docketing of the appeal.  At that time, the ALJ  
               will confirm that the expedited process is appropriate,  
               review the requirements of the expedited process with the  
               parties, review pending and impending discovery, and make  
               such orders regarding any matter as needed to meet the  
               timetable of this section.

               (2) A telephonic prehearing conference shall be held within  
               60 days of the status conference.  The prehearing  
               conference will proceed under Section 374. The parties will  
               be required to stipulate to undisputed facts, identify  
               issues, and raise issues regarding the admissibility of  
               evidence. The parties shall identify all witnesses and  
               exhibits they intend to call or introduce at the hearing.










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               (3) A hearing shall be held within 60 days of the  
               prehearing conference and will be scheduled for one day and  
               adjusted, if necessary.

               (4) The Appeals Board or a party may bring a motion to  
               shorten the timeframes set forth in subsections (c)(1) -  
               (3) on a showing of good cause."

          The Initial Statement of Reasons filed by OSHAB accompanying the  
          proposed rulemaking stated the following:

               "The purpose of this proposed change is to uniformly  
               expedite certain types of appeals in order to mitigate the  
               delay in abatement that can occur as a result of Rule 362,  
               which allows for the automatic stay of abatement in every  
               case.

               The problem addressed is the small but meaningful number of  
               cases wherein a hazardous condition remains unabated at a  
               cited employer's workplace pending the resolution of the  
               appeal.  The Labor Code provides an employer the  
               opportunity to challenge any citation, and the automatic  
               stay rule (Title 8, section 362) exists to protect  
               employers from the expense of implementing changes to its  
               operations (i.e. abatement of an alleged violation) that  
               ultimately are not required if the citation is successfully  
               appealed.  The automatic stay rule is a Board rule that  
               preserves Board resources by not requiring adjudication of  
               the merits of a stay in each case.  Such a requirement  
               would necessitate very different procedures and would  
               require more resources than the Board currently has  
               available. Most employers voluntarily abate, as ordered in  
               a citation, because doing so allows for an abatement credit  
               of a 50% reduction in the proposed penalty.  This allowance  
               is due to
               Director's regulations and is beyond the scope of the  
               Appeals Board's rulemaking authority.

               Alternatives to this rule were proposed by stakeholders,  
               namely, repeal of the automatic stay provision.  However,  
               such alternative would not be less burdensome and equally  
               effective.  Rather, such would result in employers who  
               contest the abatement ordered by the Division having no  
               remedy to obtain a stay other than by seeking one from the  
               superior court.  This is costly for employers and the  









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               Division, which must respond. Another alternative  
               considered in principle was a shortened procedure for  
               addressing requests by employers for a stay and the repeal  
               of the automatic stay.  This was not the least costly,  
               effective alternative, as it would require two hearings in  
               cases where abatement was contested.  A compelling argument  
               was also made that the merits of ordering a stay turn on  
               whether the violation occurred, and so any procedure  
               addressing the merits of a stay requires a hearing on the  
               merits of the alleged violation.  For purposes of allowing  
               discovery by the parties, reaching the merits consumes  
               approximately 120 days of time.

               Reason this alternative was selected: Since the great  
               majority of employers who appeal also voluntarily abate the  
               cited condition, and since non-serious and regulatory  
               violations pose less of a danger to employees, staying  
               abatement in those cases but pushing forward the serious,  
               willful or repeat cases wherein the employer has not  
               voluntarily abated effectively isolates the meaningful  
               contests of the abatement order.  This greatly reduces (to  
               4-5 months maximum) the amount of time employees are  
               potentially exposed to unabated, serious violations after  
               the citation is issued.  Also, during the pilot project,  
               abatement occurred in the great majority of appeals that  
               qualified for this expedited abatement project, resulting  
               in only one actual hearing during five months of the pilot  
               project.  Thus, the existence of the expedited abatement  
               procedure motivates employers to abate even if they contest  
               the underlying violation.  This greatly increases the  
               safety of workers in California but does so with the least  
               impact on the regulated community and at the least cost to  
               the Board?

               ?The benefits of this regulatory addition are that serious,  
               willful, and repeat violations, wherein abatement has not  
               occurred, will be processed within 120 days of the filing  
               of the appeal, and as proven by the pilot program  
               undertaken by the Appeals Board in 2009, many employers  
               will elect to voluntarily abate the condition during the  
               pendency of the appeal to avoid the rapid processing of the  
               case."

           Recent Washington State Legislation
           









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          The author of this bill notes that legislation was signed into  
          law in April 2011 in the State of Washington that requires  
          employers to correct serious safety violations during any appeal  
          of a citation issued by the Washington Department of Labor and  
          Industries.

           Recent Related Legislation
           
          This bill is similar, but not identical to AB 1165 (Skinner)  
          from 2013.  AB 1165 was vetoed by Governor Brown, who stated the  
          following in his veto message:

               "I share the author's concern that workplace safety risks  
               need to be abated quickly and not delayed during the  
               appeals process. 

               Unfortunately, this measure would require the creation of a  
               separate hearing process at the Division of Occupational  
               Safety and Health - duplicating an expedited Cal/OSHA  
               Appeals Board process which was recently adopted.

               I am directing Cal/OSHA to consult with the author to make  
               sure the Appeals Board process is working as intended and,  
               if necessary, to recommend any additional administrative or  
               regulatory actions that may be needed."

           Abatement Issues Raised in Recent Oversight Hearing of Workplace  
          Fatalities Involving BART
           
          On November 7, 2013, this Committee conducted an oversight  
          hearing on workplace safety issues and the San Francisco Bay  
          Area Rapid Transit District (BART) following an October incident  
          in which two employees were struck and killed by a train during  
          track maintenance performing work under a BART workplace policy  
          known as "simple approval," which governs employees performing  
          work on or near tracks.  The "simple approval" procedure was an  
          issue in a 2001 fatality of a BART employee, and a subsequent  
          2008 fatality.  Following the 2008 incident, DOSH issued a  
          number of citations to BART, including citations over the use of  
          the "simple approval" procedure.  Those citations were still  
          being litigated at the time of the Committee hearing.

          In light of the fatality incidents that preceded the October  
          incident, as well as the prior DOSH enforcement activity,  
          concerns were expressed that this event highlighted flaws in the  









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          current abatement process that may jeopardize the health and  
          safety of workers.

          At the time of the hearing, one of the sponsors of the  
          aforementioned AB 1165 (Worksafe) commented that improvements to  
          the abatement process, had they been adopted in time, may have  
          prevented the recent incident that occurred on October 19:

               "Having a law like AB 1165 in place would have prevented  
               recalcitrant employers like BART from using the system to  
               delay fixing serious hazards.  If it had been around in  
               2008, BART would have long ago been required to develop a  
               safer approach to protect people working on train lines,  
               and Chris Sheppard and Laurence Daniels might still be  
               alive today."<1>

           ARGUMENTS IN SUPPORT  :

          According to the author, this bill ensures that unsafe  
          conditions in the workplace get corrected in a timely manner and  
          puts employee safety first.  Existing law empowers DOSH to cite  
          an employer if, upon inspection, DOSH believes that the employer  
          has violated safety laws, or regulations.  DOSH citations  
          include an order to fix ("abate") the hazardous conditions and a  
          deadline to abate.  An employer may appeal citations from DOSH.   
          During the appeal, existing law stays all abatement until the  
          appeal is resolved.  The author contends that, in practice, many  
          employers use the appeals process to delay abatement.  Appeals  
          can last for months or years after the original citation is  
          issued.  Therefore, this bill requires an employer to abate the  
          most serious workplace hazards, as required by DOSH, even during  
          an employer's appeal.

          The sponsor of this measure, the State Building and Construction  
          Trades Council of California, argues that this bill will  
          increase worker safety by requiring certain workplace safety  
          hazards to be fixed in a timely fashion.  They state that under  
          the current process there could be (and have been) unsafe  
          conditions that have persisted in workplaces simply because an  
          employer has exercised their right to an appeal.  Employers  
          should certainly have the right to appeal but not at the expense  
          of the safety and health of workers at a place of employment  
          that has had a dangerous condition uncovered by DOSH.




          ---------------------------
          <1> http://www.worksafe.org/2013/10/when-hazards-go-unfixed.html








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           ARGUMENTS IN OPPOSITION  :

          Opponents, including the California Chamber of Commerce, oppose  
          this bill and argue that it proposes a costly double-appeal  
          process that presumes guilt for employers, undermines due  
          process with regards to citations for workplace safety  
          violations and is unnecessary in light of recently adopted  
          regulations for an expedited appeals process for these  
          situations.

          


          Opponents contend that this bill requires employers to abate  
          safety hazards for which they have been cited prior to  
          resolution of the appeal.  In other words, while the employer  
          exercises its right to contest the existence of an alleged  
          violation, DOSH could order the employer to fix the alleged  
          violative condition before the Appeals Board has determined  
          whether a violation even exists.

          They argue that the requirements for abatement are already  
          grounds for appealing a citation issued by DOSH.  Moreover, DOSH  
          has authority to issue an Order Prohibiting Use where it  
          concludes a condition, process or piece of machinery poses an  
          imminent hazard to employee safety.  Requiring employers to  
          specifically contest abatement where it would otherwise be  
          stayed creates two separate appeals where currently there is  
          one.  The creation of a new ground for appeal concerning  
          abatement is not needed and will place an unnecessary burden on  
          DOSH, employers, and other parties.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Labor Federation, AFL-CIO
          State Building and Construction Trades Council of California  
          (sponsor)

           Opposition 
           
          Air Conditioning Trade Association
          Associated Builders and Contractors of California
          Associated General Contractors of California









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          Associated Roofing Contractors of the Bay Area Counties, Inc.
          Brawley Chamber of Commerce
          Brea Chamber of Commerce
          California Association of Winegrape Growers
          California Automotive Business Coalition
          California Chamber of Commerce
          California Chapter of American Fence Association
          California Construction & Industrial Materials Association
          California Farm Bureau Federation
          California Fence Contractors' Association
          California Framing Contractors Association
          California Grocers Association
          California League of Food Processors
          California Manufacturers and Technology Association
          California Professional Association of Specialty Contractors
          California Restaurant Association
          California Retailers Association
          Chambers of Commerce Alliance of Ventura and Santa Barbara
          Desert Hot Springs Chamber of Commerce and Visitors Center
          El Centro Chamber of Commerce
          Engineering Contractors' Association
          Flasher Barricade Association
          Fullerton Chamber of Commerce
          Greater Bakersfield Chamber of Commerce
          Lake Tahoe South Shore Chamber of Commerce
          Marin Builders Association
          National Federation of Independent Business
          Oxnard Chamber of Commerce
          Palm Desert Area Chamber of Commerce
          Plumbing-Heating-Cooling Contractors Association of California
          Porterville Chamber of Commerce
          Redondo Beach Chamber of Commerce
          Residential Contractors Association
          San Diego East County Chamber of Commerce
          San Fernando Valley Chamber of Commerce
          San Jose Chamber of Commerce
          Santa Barbara Chamber of Commerce
          Santa Clara Chamber of Commerce and Convention-Visitors Bureau
          Simi Valley Chamber of Commerce
          Southwest California Advocacy Associates
          Southwest California Legislative Council
          Turlock Chamber of Commerce
          Valley Industry and Commerce Association
          Visalia Chamber of Commerce
          Walter & Prince LLP









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          Western Electrical Contractors Association
          Western Growers Association
          Western States Petroleum Association
          Western Steel Council
          Wine Institute
           

          Analysis Prepared by  :    Ben Ebbink / L. & E. / (916) 319-2091