BILL ANALYSIS Ó AB 1634 Page A 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. AB 1634 Page B 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 AB 1634 Page C 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. AB 1634 Page D (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 AB 1634 Page E 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 AB 1634 Page F 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 AB 1634 Page G 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 AB 1634 Page H 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 AB 1634 Page I 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 AB 1634 Page J 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