BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1050| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1050 Author: Low (D), et al. Amended: 2/10/16 in Senate Vote: 21 PRIOR VOTES NOT RELEVANT SENATE LABOR & IND. REL. COMMITTEE: 3-1, 6/8/16 AYES: Mendoza, Leno, Mitchell NOES: Stone NO VOTE RECORDED: Jackson SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16 AYES: Lara, Beall, Hill, McGuire, Mendoza NOES: Bates, Nielsen SUBJECT: Occupational safety and health: permanent variances SOURCE: International Union of Elevator Constructors DIGEST: This bill (1) requires that employers seeking a permanent variance to an elevator safety order notify specified affected workers, and (2) grant party status to affected workers, or their authorized representative, to participate in variance proceedings. ANALYSIS: Existing law: AB 1050 Page 2 1)Permits employers to apply to the Occupational Safety and Health Standards Board (Board) for a permanent variance from an occupational safety health standard, order, or special order upon showing an alternate program, method, practice, means, device, or process which will provide equal or superior safety. 2)Provides that the Board shall issue such a variance if it determines on the record, after opportunity for an investigation where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer are as safe and healthful as those which would prevail under the standard. 3)Authorizes the Board to grant a variance from any standard or portion thereof where it determines a variance is necessary to permit an employer to participate in an approved experiment designed to demonstrate or validate new and improved techniques to safeguard the health or safety of workers. 4)Provides that a permanent variance may be modified or revoked upon application by an employer, employees, or the division, or by the board on its own motion, as specified. 5)Requires that the Board conduct hearings on such requests for a permanent variance after employees or employee representatives are properly notified and given an opportunity to appear. (Labor Code §143.1) This bill: 1)Requires employers seeking a permanent variance to a conveyance covered by the elevator safety orders to notify the union representing elevator workers in the region where the building is being constructed or modified and those workers AB 1050 Page 3 who will be performing the tasks pursuant to the proposed variance, or their authorized representative. 2)Grants these workers, or their authorized representative, party status upon request to the Board. Background The Board adopts safety and health standards that are designed to protect California workers. However, existing law authorizes and sets forth a process whereby an employer may apply for a "variance," which is generally permission to deviate or not follow an existing standard. These variances fall into two categories - permanent variances and temporary variances. The application process for both permanent and temporary variances includes a requirement that the employer notify employees of the variance being sought and gives employees an opportunity to engage in the hearing process. The focus of this bill is on the permanent variance process and what constitutes notification to employees - more specifically, which employees need to be notified of the variance request. The law requires the Board to conduct hearings on requests for permanent variances after employees or employee representatives are properly notified and given an opportunity to appear. The Board regulations provide that "affected employees" and authorized employee representative may elect to participate as parties at any time before commencement of the variance hearing. (California Code of Regulations, Title 8, Section 406(a)). The regulations define "affected employee" to mean: "[A]n employee of the employer seeking the variance who is exposed, as a result of his or her assigned duties, to the condition or hazards covered by the standard for which the variance is sought." (California Code of Regulations, Title 8, Section 403(l)). The "employees of the employer seeking the variance," however, may not actually be the workers that will be performing the duties associated with the request because not all affected workers are technically employees of the employer. For example, AB 1050 Page 4 in the installation of an elevator, the employees that will be impacted by a variance from a safety order will be the employees of the contractor or elevator manufacturer who are brought in to perform the work. The author argues that this lack of notification prevents workers who are actually doing the work from participating in the variance hearing or even be notified that a variance has been requested. This bill helps ensure that a permanent variance request pertaining to conveyances receives a thorough hearing by requiring that the applicant notify the union representing elevator workers in the region where the building is being constructed or modified and those workers who will be performing the tasks, or their authorized representative, of the request for a variance. Prior Legislation AB 578 (Low, 2015) was similar to this bill, but not identical. AB 578 was broader in its approach and included notification requirements for both permanent and temporary variance requests. AB 578 was vetoed by the Governor who stated, "While this bill is intended to provide an opportunity for affected workers to be notified of variances and raise concerns during a relevant hearing, it is unclear what workers would be affected, and why the current process at the Occupational Safety and Health Standards Board is not sufficient. In fact the board routinely works with stakeholders to provide timely written notice of variance requests and permits those parties to intervene in the proceedings. I believe that process is one that provides adequate opportunity for interested and affected workers to be heard." FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No According to the Senate Appropriations Committee, the Department AB 1050 Page 5 of Industrial Relations indicates that it would incur first-year costs of $166,000 and ongoing costs of $160,000 to implement the provisions of this bill (special fund). SUPPORT: (Verified8/12/16) International Union of Elevator Constructors (source) California Labor Federation, AFL-CIO California State Association of Electrical Workers California State Pipe Trades Council Coalition of California Utility Employees State Building and Construction Trades Council Western States Council of Sheet Metal Workers OPPOSITION: (Verified8/17/16) Associated Builders and Contractors of California California Building Industry Association California Business Properties Association California Chamber of Commerce California Hospital Association California Manufacturers and Technology Association Professional Association of Specialty Contractors ARGUMENTS IN SUPPORT: According to proponents, this bill seeks to correct an oversight in the Board variance application process with respect to requests for an elevator, or other public conveyances variance. They argue that with these variance requests, the building owner is not required to notify those employees who will be installing the conveyance for which a variance application has been filed. They note that approximately 90% of all permanent variance applications are for elevators and other public conveyances, and approximately 95% of these installations are done by the men and women of the International Union of Elevator Constructors. This bill, they argue, simply requires that the variance applicant provide notice to these workers, or their representatives, of the AB 1050 Page 6 application for a safety order variance. The author and proponents believe that this bill will help guarantee that a variance request receives a thorough and fair hearing, while making certain that the Board has all of the relevant facts before making a decision on a variance request. They argue that this bill ensures that those workers who will be the ones actually doing the work will be notified as part of the application process and will be allowed to participate in the variance hearing. ARGUMENTS IN OPPOSITION: According to opponents, this bill is substantially similar to AB 578 (Low) from last year, which Governor Brown vetoed, indicating that it was unclear which employees would be affected by the new notice requirements and questioned why the existing process was not sufficient to protect workers' rights. Opponents of this bill are opposed unless amended arguing that this bill creates expansive new notification requirements for conveyance variance applicants and such an expansion creates a number of compliance and enforcement issues. First, they argue, the tasks and personnel who will perform them are not determined until the variance is granted and the associated work is undertaken, while the notice requirements are imposed at the beginning of the process. Second, the workers who perform tasks pursuant to an elevator variance are not limited to elevator mechanics - administrative, management and other functions are often required by the variance, complicating the proposed notification requirements further. And third, they argue that expanding the notification requirements and granting party status to such a broad spectrum opens the door to abuse by periphery interests and could cause additional delays in the process. Opponents are proposing an amendment that would strike the notification requirement "to those workers who will be performing the tasks pursuant to the proposed variance or their authorized representative" as well as strike the language granting these workers party status. They argue that these AB 1050 Page 7 proposed amendments address the notification to the union without subjecting employers to the onerous requirement of searching out the identity and contact information for personnel of contracted conveyance companies. Further, they argue that the proposed amendments would prevent potential abuse of an expansion of parties and keep potential delays in the process under control. ASSEMBLY FLOOR: 62-7, 5/26/15 AYES: Achadjian, Alejo, Baker, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Williams, Wood, Atkins NOES: Bigelow, Beth Gaines, Gallagher, Grove, Jones, Patterson, Wilk NO VOTE RECORDED: Travis Allen, Bloom, Brough, Chávez, Dahle, Hadley, Harper, Mathis, Mayes, Melendez, Olsen Prepared by:Alma Perez-Schwab / L. & I.R. / (916) 651-1556 8/17/16 14:40:49 **** END ****