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