BILL ANALYSIS Ó AB 1634 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1634 (Skinner) As Amended August 21, 2014 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |45-28|(May 28, 2014) |SENATE: |25-10|(August 27, | | | | | | |2014) | ----------------------------------------------------------------- Original Committee Reference: L. & E. SUMMARY : Enacts various provisions of law related to an employer's obligation to abate an alleged workplace safety and health hazard. The Senate amendments revise this bill to provide as follows: 1)For serious violations, the Division of Occupational Safety and Health (DOSH) shall not grant proposed modification to civil penalties for abatement or credit for abatement unless the employer has done any of the following: a) Abated the violation at the time of the initial inspection. b) Abated the violation at the time of a subsequent inspection prior to the issuance of a citation. c) Submitted a signed statement under penalty of perjury and supporting evidence when necessary to prove abatement, as specified. 2)Whenever a serious violation is not abated at the time of the initial or subsequent inspection, DOSH shall require the employer to submit a signed statement "with supporting evidence when necessary to prove abatement" that he or she has complied with the abatement terms within the period fixed for abatement of the violation. 3)DOSH may grant a modification to civil penalties for abatement 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 AB 1634 Page 2 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. 4)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. AS PASSED BY THE ASSEMBLY , this bill: 1)Provided 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)Provided that if a stay of abatement is requested from DOSH, it may stay the abatement if it determines that a stay will not adversely affect the health and safety of employees. FISCAL EFFECT : According to the Senate Appropriations Committee, the Department of Industrial Relations estimates that it would incur first years costs of $765,000 and annual costs of $635,000 (special funds) to implement the provisions of this bill. 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 AB 1634 Page 3 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 raised concerns 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. As introduced, this bill sought to address this problem by providing 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. This bill also provided that if a stay of abatement is requested from DOSH, it may stay the abatement if it determines that a stay will not adversely affect the health and safety of employees. However, recent Senate amendments narrow the bill to address issues that arise only during reconsideration of a decision by OSHAB. Specifically, this bill now provides that 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 unless 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 of abatement by filing a written, verified petition with supporting declarations within 10 days after the issuance of the order or decision. This bill also addresses abatement credits or modifications of penalties by requiring an employer to submit supporting evidence regarding satisfaction of the abatement terms. Current law requires employers to submit a signed statement under penalty of perjury, but not necessarily supporting evidence documenting proof of abatement. Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091 FN: 0005189 AB 1634 Page 4