BILL ANALYSIS Ó
AB 1050
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Date of Hearing: August 29, 2016
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Tony Thurmond, Chair
AB 1050
(Low) - As Amended February 10, 2016
SUBJECT: Occupational safety and health: permanent variances
SUMMARY: Makes changes related to permanent variances to
elevator safety orders. Specifically, this bill:
1)Provides that if a request for a permanent variance pertains
to a conveyance covered by the elevator safety orders, the
applicant shall notify the union representing elevator workers
in the region where the building is being constructed or
modified and to those workers who will be performing the tasks
pursuant to the proposed variance (or their authorized
representative).
2)Provides that these workers, or their authorized
representative, shall be granted party status upon request to
the Occupational Safety and Health Standards Board (Standards
Board).
EXISTING LAW:
1)Permits employers to apply to the Standards Board for a
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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 for the employees.
2)Provides that the Standards 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)States that the variance shall prescribe the conditions the
employer must maintain and the practices, means, methods,
operations, and processes which the employer must adopt and
utilize to the extent they differ from the standard in
question.
4)Authorizes the Standards 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.
5)Provides that a permanent variance may be modified or revoked
upon application by an employer, employees, or the division,
or by the Standards Board on its own motion, as specified.
6)Requires that the Standards Board conduct hearings on such
requests for a permanent variance after employees or employee
representatives are properly notified and given an opportunity
to appear.
FISCAL EFFECT: According to the Senate Appropriations
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Committee, the Department 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.
COMMENTS: Under current law, the Standards Board has authority
to consider variances to Cal/OSHA standards when a building is
being constructed, repaired, or updated - the vast majority of
these variances are requests for conveyances such as elevators
and escalators. Existing law provides that a variance may be
considered by the Standards Board only after notice is given to
employees. However, in practice 'employees' are considered to
be the employees of the applicant who is seeking the variance,
which may not be the employees that will actually work on the
project. For example, 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 would help 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. The bill would also grant these workers, or
their authorized representative, party status upon request to
the Standards Board.
According to supporters, this bill seeks to correct an oversight
in the Cal/OSHA Standards 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
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variance application has been filed. They note that
approximately 90 percent of all permanent variance applications
are for elevators and other public conveyances, and
approximately 95 percent of these installations are done by the
men and women of the International Union of Elevator
Constructors. This legislation, they argue, simply requires
that the variance applicant provide notice to these workers, or
their representatives, of the application for a safety order
variance.
The author and supporters believe that this bill will help
guarantee that a variance request receives a thorough and fair
hearing, while making certain that the Standards 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.
Opponents of the measure are opposed unless amended arguing that
this bill creates expansive new notification requirements for
conveyance variance applicants. 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 argue that like its
predecessor, this bill creates a new expanded category of
workers and their representatives to be notified by a conveyance
variance applicant and such an expansion creates a number of
compliance and enforcement issues.
Prior Related Legislation
This bill is similar, but not identical, to AB 578 (Low) from
last year. AB 578 was vetoed by Governor Brown, who stated the
following in his veto message:
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"This bill requires employers who apply for variances of
existing occupational safety or health standards to formally
notice workers, or representatives of workers, who will be
impacted.
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."
REGISTERED SUPPORT / OPPOSITION:
Support
California Labor Federation, AFL-CIO
California State Association of Electrical Workers
California State Pipe Trades Council
Coalition of California Utility Employees
International Union of Elevator Constructors (sponsor)
State Building and Construction Trades Council
Western States Council of Sheet Metal Workers
Opposition
Associated Builders and Contractors of California
California Building Industry Association
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California Business Properties Association
California Chamber of Commerce
California Hospital Association
California Manufacturers and Technology Association
Professional Association of Specialty Contractors
Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091