BILL NUMBER: AB 1127 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 1, 1999
AMENDED IN ASSEMBLY MAY 18, 1999
INTRODUCED BY Assembly Member Steinberg
FEBRUARY 25, 1999
An act to amend Sections 98.7, 6302, 6304.5, 6308, 6309, 6315.5,
6317, 6323, 6324, 6325, 6400, 6423, 6425, 6427, 6428, 6429, 6430,
6432, and 6435 of, to add Sections 6424 and 6719 to, and to repeal
Sections 6357 and Section 6434 of, the
Labor Code, relating to employee safety.
LEGISLATIVE COUNSEL'S DIGEST
AB 1127, as amended, Steinberg. Employee safety: violations.
Under existing law, any person who believes that he or she has
been discharged or otherwise discriminated against in violation of
the Labor Code under the jurisdiction of the Labor Commissioner may
file a complaint with the Division of Labor Standards Enforcement
within 30 days after the occurrence of the violation.
This bill would extend from 30 days to one year that period of
time within which a complaint may be filed with the division.
Under the California Occupational Safety and Health Act of 1973
(hereafter the act), the term "serious exposure" is defined for
purposes of establishing a violation of standards and orders of the
Occupational Safety and Health Standards Board (hereafter the
standards board) governing employee safety.
This bill would include within the definition of a serious
exposure, for those purposes, any exposure in excess of an
established permissible exposure limit.
Existing law provides that the provisions of the act have no
application to, may not be considered in, and may not be admitted
into, evidence in any personal injury or wrongful death action
arising after January 1, 1972, except as between an employee and his
or her employer.
This bill instead would provide that neither the issuance of, or
failure to issue, a citation by the Division of Occupational Safety
and Health (hereafter the division) has any application to, nor may
be considered in, nor may be admitted into, evidence in any personal
injury or wrongful death action, except as between an employee and
his or her employer. The bill also would provide that the act and
the occupational safety and health standards and orders promulgated
under the Labor Code may have application to, may be considered in,
or may be admissible into, evidence in any personal injury or
wrongful death action.
Existing law provides that if the division secures a complaint
from an employee, the employee's representative, or an employer of
the employee directly involved in an unsafe place of employment, that
his or her employment or place of employment is not safe, the
division is required to summarily investigate the complaint as soon
as possible, but not later than 3 working days after receipt of a
complaint charging a serious violation, and not later than 14 days
after receipt of a complaint charging a nonserious violation. Under
existing law the division is not required to respond to a complaint
if it determines that either the complaint is intended to willfully
harass an employer or is without reasonable basis.
This bill also would require the division to conduct those
investigations if a complaint is received by the employee's
representative, including, but not limited to, an attorney, health or
safety professional, union representative, family member, or
representative of a government agency. The bill would also provide
that the division is not required to respond to a complaint if, from
the facts stated in the complaint, it determines that the complaint
is intended to willfully harass an employer and is without any
reasonable basis.
Existing law states that all occupational safety and health
standards and orders, rules, regulations, findings, and decisions of
the division made and entered pursuant to the act are admissible as
evidence in any prosecution for the violation of the act.
This bill instead would provide that all occupational safety and
health standards and orders are admissible as evidence in any civil
or criminal matter.
Existing law authorizes the division to issue a citation to an
employer requiring the abatement of a violation of the act.
This bill would prohibit a citation requiring abatement from being
stayed unless the employer establishes good cause for a stay of the
citation requiring abatement, as specified, and the division makes
specified findings pertaining to employee safety and health.
Existing law provides that if the condition of any employment or
place of employment or the operation of any machine, device,
apparatus, or equipment constitutes a serious menace to the lives or
safety of persons about it, the division may apply to the superior
court of the county in which the place of employment, machine,
device, apparatus, or equipment is located for an injunction
restraining the use or operation of the machine, device, apparatus,
or equipment until the condition is corrected. Existing law requires
an affidavit to accompany that application showing the place of
employment, machine, device, apparatus, or equipment is being
operated in violation of specified requirements and that its use or
operation constitutes a menace to the life or safety of any person
employed thereabout.
This bill would instead authorize the division to apply to the
superior court of the county in which the place of employment or
employee is located for an injunction under those circumstances. The
bill would also require the affidavit accompanying that application
to show that the use or operation of the machine, device, apparatus,
equipment, or process violates the specified requirements and
constitutes a menace to the life or safety of any person employed
thereabout or is likely to cause death, serious injury or illness, or
serious exposure to an employee.
Existing law requires every employer to furnish employment and a
place of employment that are safe and healthful for employees
therein.
This bill would define an employer to include, but not be limited
to, a person in a multiemployer place of employment who, with respect
to any other employee at the place of employment, employs the
exposed employee, creates the hazard, is responsible, by contract or
through practice, for safety and health conditions, or is responsible
for correcting the hazard.
Existing law provides that every employer, and every officer,
management official, or supervisor having direction, management,
control, or custody of any employment, place of employment, or other
employee is guilty of a misdemeanor if it, among other things,
knowingly or negligently violates any standard, order, or special
order, or any of certain provisions of law, or part thereof,
authorized by the act, the violation of which is deemed to be a
serious violation, as defined.
This bill would instead make any corporation, limited
liability company, or person guilty of a misdemeanor under those
circumstances. The bill would also make conforming changes
to other provisions of law that impose civil and criminal penalties
on employers for violation of specified occupational safety and
health requirements. The bill would increase from $5,000 to
$200,000 $25,000 the maximum fine that may be
imposed for a violation of those provisions. The bill also would
increase the length of incarceration and the monetary penalties that
may be imposed for a willful or repeated violation of certain
employee safety standards that cause death to any employee, or cause
permanent or prolonged impairment of the body of any employee. The
bill also would authorize a court to impose a fine in an amount less
than certain minimums specified in the bill if the court finds that
it is in the interest of justice to do so and states its findings and
reasons on the record.
Existing law prohibits civil penalties from being assessed against
employers that are governmental agencies for violations of certain
employee safety standards.
This bill would repeal that prohibition.
Existing law requires the standards board, on or before January 1,
1995, to adopt standards for ergonomics in the workplace designed to
minimize the instances of injury from repetitive motion.
This bill would repeal that provision and instead would require
the standards board to enforce specified standards applicable to a
job, process, or operation governing the prevention of repetitive
motion injuries.
By making certain violations of employee safety standards by
employers subject to criminal penalties, the bill would impose a
state mandated state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 98.7 of the Labor Code is amended to read:
98.7. (a) Any person who believes that he or she has been
discharged or otherwise discriminated against in violation of this
code under the jurisdiction of the Labor Commissioner may file a
complaint with the division within one year after the occurrence of
the violation. The one-year period may be extended for good cause.
The complaint shall be investigated by a discrimination complaint
investigator in accordance with this section. The Labor Commissioner
shall establish procedures for the investigation of discrimination
complaints. A summary of the procedures shall be provided to each
complainant and respondent at the time of initial contact. The Labor
Commissioner shall inform complainants charging a violation of
Section 6310 or 6311, at the time of initial contact, of his or her
right to file a separate, concurrent complaint with the United States
Department of Labor within 30 days after the occurrence of the
violation.
(b) Each complaint of unlawful discharge or discrimination shall
be assigned to a discrimination complaint investigator who shall
prepare and submit a report to the Labor Commissioner based on an
investigation of the complaint. The Labor Commissioner may designate
the chief deputy or assistant Labor Commissioner or the chief
counsel to receive and review the reports. The investigation shall
include, where appropriate, interviews with the complainant,
respondent, and any witnesses who may have information concerning the
alleged violation, and a review of any documents which may be
relevant to the disposition of the complaint. The identity of
witnesses shall remain confidential unless the identification of the
witness becomes necessary to proceed with the investigation or to
prosecute an action to enforce a determination. The investigation
report submitted to the Labor Commissioner or designee shall include
the statements and documents obtained in the investigation, and the
findings of the investigator concerning whether a violation occurred.
The Labor Commissioner may hold an investigative hearing whenever
the Labor Commissioner determines, after review of the investigation
report, that a hearing is necessary to fully establish the facts. In
the hearing the investigation report shall be made a part of the
record and the complainant and respondent shall have the opportunity
to present further evidence. The Labor Commissioner shall issue,
serve, and enforce any necessary subpoenas.
(c) If the Labor Commissioner determines a violation has occurred,
he or she shall notify the complainant and respondent and direct the
respondent to cease and desist from the violation and take such
action as is deemed necessary to remedy the violation, including,
where appropriate, rehiring or reinstatement, reimbursement of lost
wages and interest thereon, payment of reasonable attorney's fees
associated with any hearing held by the Labor Commissioner in
investigating the complaint, and the posting of notices to employees.
If the respondent does not comply with the order within 10 working
days following notification of the Labor Commissioner's
determination, the Labor Commissioner shall bring an action promptly
in an appropriate court against the respondent. If the Labor
Commissioner fails to bring an action in court promptly, the
complainant may bring an action against the Labor Commissioner in any
appropriate court for a writ of mandate to compel the Labor
Commissioner to bring an action in court against the respondent. If
the complainant prevails in his or her action for a writ, the court
shall award the complainant court costs and reasonable attorney's
fees, notwithstanding any other provision of law. Regardless of any
delay in bringing an action in court, the Labor Commissioner shall
not be divested of jurisdiction. In any such action, the court may
permit the claimant to intervene as a party plaintiff to the action
and shall have jurisdiction, for cause shown, to restrain the
violation and to order all appropriate relief. Appropriate relief
includes, but is not limited to, rehiring or reinstatement of the
complainant, reimbursement of lost wages and interest thereon, and
any other compensation or equitable relief as is appropriate under
the circumstances of the case. The Labor Commissioner shall petition
the court for appropriate temporary relief or restraining order
unless he or she determines good cause exists for not doing so.
(d) If the Labor Commissioner determines no violation has
occurred, he or she shall notify the complainant and respondent and
shall dismiss the complaint. The Labor Commissioner may direct the
complainant to pay reasonable attorney's fees associated with any
hearing held by the Labor Commissioner if the Labor Commissioner
finds the complaint was frivolous, unreasonable, groundless, and was
brought in bad faith. The complainant may, after notification of the
Labor Commissioner's determination to dismiss a complaint, bring an
action in an appropriate court, which shall have jurisdiction to
determine whether a violation occurred, and if so, to restrain the
violation and order all appropriate relief to remedy the violation.
Appropriate relief includes, but is not limited to, rehiring or
reinstatement of the complainant, reimbursement of lost wages and
interest thereon, and such other compensation or equitable relief as
is appropriate under the circumstances of the case. When dismissing
a complaint, the Labor Commissioner shall advise the complainant of
his or her right to bring an action in an appropriate court if he or
she disagrees with the determination of the Labor Commissioner, and
in the case of an alleged violation of Section 6310 or 6311, to file
a complaint against the state program with the United States
Department of Labor.
(e) The Labor Commissioner shall notify the complainant and
respondent of his or her determination under subdivision (c) or (d),
not later than 60 days after the filing of the complaint.
Determinations by the Labor Commissioner under subdivision (c) or (d)
may be appealed by the complainant or respondent to the Director of
Industrial Relations within 10 days following notification of the
determination. The appeal shall set forth specifically and in full
detail the grounds upon which the appealing party considers the Labor
Commissioner's determination to be unjust or unlawful, and every
issue to be considered by the director. The director may consider
any issue relating to the initial determination and may modify,
affirm, or reverse the Labor Commissioner's determination. The
director's determination shall be the determination of the Labor
Commissioner. The director shall notify the complainant and
respondent of his or her determination within 10 days of receipt of
the appeal.
(f) The rights and remedies provided by this section do not
preclude an employee from pursuing any other rights and remedies
under any other provisions of law.
SEC. 2. Section 6302 of the Labor Code is amended to read:
6302. As used in this division:
(a) "Director" means the Director of Industrial Relations.
(b) "Department" means the Department of Industrial Relations.
(c) "Insurer" includes the State Compensation Insurance Fund and
any private company, corporation, mutual association, and reciprocal
or interinsurance exchange, authorized under the laws of this state
to insure employers against liability for compensation under this
part and under Division 4 (commencing with Section 3201), and any
employer to whom a certificate of consent to self-insure has been
issued.
(d) "Division" means the Division of Occupational Safety and
Health.
(e) "Standards board" means the Occupational Safety and Health
Standards Board, within the department.
(f) "Appeals board" means the Occupational Safety and Health
Appeals Board, within the department.
(g) "Aquaculture" means a form of agriculture as defined in
Section 17 of the Fish and Game Code.
(h) "Serious injury or illness" means any injury or illness
occurring in a place of employment or in connection with any
employment which requires inpatient hospitalization for a period in
excess of 24 hours for other than medical observation or in which an
employee suffers a loss of any member of the body or suffers any
serious degree of permanent disfigurement, but does not include any
injury or illness or death caused by the commission of a violation of
the Penal Code, except the violation of Section 385 of the Penal
Code, or an accident on a public street or highway.
(i) "Serious exposure" means any exposure of an employee to a
hazardous substance when the exposure occurs as a result of an
incident, accident, emergency, or exposure over time and is in a
degree or amount sufficient to create a substantial probability that
death or serious physical harm in the future could result from the
exposure. Any exposure in excess of an established
permissible exposure limit is a serious exposure.
exposure.
(j) "Serious physical harm" means any of the following:
(1) Any injury involving a temporary, prolonged, or permanent
impairment of the body in which any part of the body is rendered
functionally useless or substantially reduced in efficiency on or off
the job.
(2) Any illness involving a condition that may shorten life or
significantly reduce physical or mental efficiency by inhibiting the
normal function of a part of the body.
(3) Any injury or illness that results in temporary or permanent
disability.
SEC. 3. Section 6304.5 of the Labor Code is amended to read:
6304.5. It is the intent of the Legislature that the provisions
of this division, and the occupational safety and health standards
and orders promulgated under this code, are applicable to proceedings
against employers for the exclusive purpose of maintaining and
enforcing employee safety.
Neither the issuance of, or failure to issue, a citation by the
division shall have any application to, nor be considered in, nor be
admissible into, evidence in any personal injury or wrongful death
action, except as between an employee and his or her own employer.
This division and the occupational safety and health standards and
orders promulgated under this code may have application to, be
considered in, or be admissible into, evidence in any personal injury
or wrongful death action.
SEC. 4. Section 6308 of the Labor Code is amended to read:
6308. In enforcing this division, occupational safety and health
standards, orders, and special orders, the division may do any of the
following:
(a) Declare and prescribe the safety devices, safeguards, or other
means or methods of protection that are well adapted to render the
employees of every employment and place of employment safe as
required by law or lawful order.
(b) Enforce Section 25910 of the Health and Safety Code and
standards and orders adopted by the standards board pursuant to
Chapter 6 (commencing with Section 140) of Division 1 of the Labor
Code, for the installation, use, maintenance, and operation of
reasonable uniform safety devices, safeguards, and other means or
methods of protection, which are necessary to carry out all laws and
lawful standards or special orders relative to the protection of the
life and safety of employees in employments and places of employment.
(c) Require the performance of any other act that is reasonably
necessary for the protection of the life and safety of the employees
in employments and places of employment.
An employer may request a hearing on a special order or action
ordered pursuant to this section, at which the employer, owner, or
any other person may appear. The appeals board shall conduct the
hearing at the earliest possible time.
All orders, rules, regulations, findings, and decisions of the
division made or entered under this part, except special orders and
action orders, may be reviewed by the Supreme Court and the courts of
appeal as may be provided by law.
SEC. 5. Section 6309 of the Labor Code is amended to read:
6309. If the division learns or has reason to believe that any
employment or place of employment is not safe or is injurious to the
welfare of any employee, it may, of its own motion, or upon
complaint, summarily investigate the employment or place of
employment, with or without notice or hearings. However, if the
division secures a complaint from an employee, the employee's
representative, including, but not limited to, an attorney, health or
safety professional, union representative, family member, or
representative of a government agency, or an employer of an employee
directly involved in an unsafe place of employment, that his or her
employment or place of employment is not safe, it shall, with or
without notice or hearing, summarily investigate the employment or
place of employment as soon as possible, but not later than three
working days after receipt of a complaint charging a serious
violation, and not later than 14 calendar days after receipt of a
complaint charging a nonserious violation. The division shall
attempt to determine the period of time in the future that the
complainant believes the unsafe condition may continue to exist, and
shall allocate inspection resources so as to respond first to those
situations in which time is of the essence. For purposes of this
section, a complaint shall be deemed to allege a serious violation if
the division determines that the complaint charges that there is a
substantial probability that death or serious physical harm could
result from a condition which exists, or from one or more practices,
means, methods, operations, or processes which have been adopted or
are in use in a place of employment. All other complaints shall be
deemed to allege nonserious violations. The division may enter and
serve any necessary order relative thereto. The division is not
required to respond to any complaint within this period if, from the
facts stated in the complaint, it determines that the complaint is
intended to willfully harass an employer and is without any
reasonable basis.
The division shall keep complete and accurate records of any
complaints, whether verbal or written, and shall inform the
complainant, whenever his or her identity is known, of any action
taken by the division in regard to the subject matter of the
complaint, and the reasons for the action. The records of the
division shall include the dates on which any action was taken on the
complaint, or the reasons for not taking any action on the
complaint. The division shall, pursuant to authorized regulations,
conduct an informal review of any refusal by a representative of the
division to issue a citation with respect to any alleged violation.
The division shall furnish the employee or the representative of
employees requesting the review a written statement of the reasons
for the division's final disposition of the case.
The name of any person who submits to the division a complaint
regarding the unsafeness of an employment or place of employment
shall be kept confidential by the division, unless that person
requests otherwise.
The requirements of this section shall not relieve the division of
its requirement to inspect and assure that all places of employment
are safe and healthful for employees. The division shall maintain
the capability to receive and act upon complaints at all times.
SEC. 6. Section 6315.5 of the Labor Code is amended to read:
6315.5. All occupational safety and health standards and orders
are admissible as evidence in any civil or criminal matter, and
shall, in any such action, be presumed to be reasonable and lawful
and to fix a reasonable and proper requirement of safety unless,
prior to the institution of the action, proceedings for a hearing on
a special order are instituted, or a petition is filed under Section
11426 of the Government Code.
SEC. 7. Section 6317 of the Labor Code is amended to read:
6317. (a) If, upon inspection or investigation, the division
believes that an employer has violated Section 25910 of the Health
and Safety Code, any standard, rule, order, or regulation established
pursuant to Chapter 6 (commencing with Section 140) of Division 1 of
the Labor Code, or any provision of this division, including any
standard, rule, order, or regulation established pursuant to this
division, it shall with reasonable promptness issue a citation to the
employer. Each citation shall be in writing and shall describe with
particularity the nature of the violation, including a reference to
the provision of the code, standard, rule, regulation, or order
alleged to have been violated. In addition, the citation shall fix a
reasonable time for the abatement of the alleged violation. The
period specified for abatement does not commence until the date the
citation or notice is received by certified mail and the certified
mail receipt is signed, or if not signed, the date the return is made
to the post office. If the division officially and directly
delivers the citation or notice to the employer, the period specified
for abatement commences on the date of the delivery.
A citation requiring abatement may not be stayed by the filing of
an appeal, except as provided in this subdivision. Upon an
application accompanied by declarations and exhibits, submitted under
penalty of perjury, an employer may petition the appeals board for a
stay of abatement pending appeal at the time the employer files a
notice of appeal. The employer shall have the burden of establishing
good cause for a stay of the citation requiring abatement. Within
five business days of the date of receipt of the notice of appeal and
request for stay of abatement pending appeal, the division may
respond to the employer's declarations and exhibits, and the division
also may request an expedited hearing. Within 10 business days, the
appeals board shall consider the evidence submitted by the employer
and the division, and shall consider oral testimony if the division
requests an expedited hearing, and upon all the evidence and
proceedings may grant a stay of abatement pending appeal if it finds
that (1) no employee may be exposed to the unsafe or unhealthful
condition or (2) that the condition is not likely to cause death,
serious injury or illness, or serious exposure to any employee.
(b) A "notice" in lieu of citation may be issued with respect to
violations found in an inspection or investigation which meet either
of the following requirements:
(1) The violations do not have a direct relationship upon the
health or safety of an employee.
(2) The violations do not have an immediate relationship to the
health or safety of an employee, and are of a general or regulatory
nature. A notice in lieu of a citation may be issued only if the
employer agrees to correct the violations within a reasonable time,
as specified by the division, and agrees not to appeal the finding of
the division that the violations exist. A notice issued pursuant to
this paragraph shall have the same effect as a citation for purposes
of establishing repeat violations or a failure to abate. Every
notice shall clearly state the abatement period specified by the
division, that the notice may not be appealed, and that the notice
has the same effect as a citation for purposes of establishing a
repeated violation or a failure to abate. The employer shall
indicate agreement to the provisions and conditions of the notice by
his or her signature on the notice.
A notice may not be issued in lieu of a citation if the violations
are serious, repeated, willful, or arise from a failure to abate.
The director shall prescribe guidelines for the issuance of these
notices.
The division may impose a civil penalty against an employer as
specified in Chapter 4 (commencing with Section 6423) of this part.
A notice in lieu of a citation may not be issued if the number of
first instance violations found in the inspection (other than
serious, willful, or repeated violations) is 10 or more violations.
No citation or notice shall be issued by the division for a given
violation or violations after six months have elapsed since
occurrence of the violation.
The director shall prescribe procedures for the issuance of a
citation or notice.
The division shall prepare and maintain records capable of
supplying an inspector with previous citations and notices issued to
an employer.
SEC. 8. Section 6323 of the Labor Code is amended to read:
6323. If the condition of any employment or place of employment
or the operation of any machine, device, apparatus, equipment, or
process constitutes a serious menace to the lives or safety of
persons about it, the division may apply to the superior court of the
county in which the place of employment or employee is situated, for
an injunction restraining the use or operation thereof until the
condition is corrected.
SEC. 9. Section 6324 of the Labor Code is amended to read:
6324. An application to the superior court for an injunction
shall be accompanied by an affidavit showing that a place of
employment, machine, device, apparatus, equipment, or process is
being operated in violation of a safety order or standard, or in
violation of Section 25910 of the Health and Safety Code, and that
the use or operation constitutes a menace to the life or safety of
any person employed thereabout or is likely to cause death, serious
injury or illness, or serious exposure to an employee. The affidavit
shall be accompanied by a copy of the order or standard applicable
thereto. The application and affidavit are a sufficient prima facie
showing to warrant, in the discretion of the court, the immediate
granting of a temporary restraining order. No bond shall be required
from the division or any other state or local prosecutor as a
prerequisite to the granting of any restraining order.
SEC. 10. Section 6325 of the Labor Code is amended to read:
6325. If, in the opinion of the division, a place of employment,
machine, device, apparatus, or equipment, or any part thereof, is in
a dangerous condition, or if a machine, device, apparatus, or piece
of equipment is not properly guarded or is dangerously placed so as
to constitute an imminent hazard to employees, or is likely to cause
death, serious injury or illness, or serious exposure to an employee,
entry therein, or the use thereof, as the case may be, shall be
prohibited by the division, and a conspicuous notice to that effect
shall be posted thereon. The prohibition of use shall be limited to
the immediate area in which the imminent hazard or condition exists,
and the division shall not prohibit any entry in or use of a place of
employment, machine, device, apparatus, or equipment, or any part
thereof, which is outside the area of imminent hazard or condition.
The notice only may be removed by an authorized representative of the
division if the place of employment, machine, device, apparatus, or
equipment is made safe and the required safeguards or safety
appliances or devices are provided. This section does not prevent
the entry or use with the division's knowledge and permission for the
sole purpose of eliminating the dangerous conditions.
SEC. 11. Section 6357 of the Labor Code is repealed.
SEC. 12.
SEC. 11. Section 6400 of the Labor Code is amended to read:
6400. Every employer shall furnish employment and a place of
employment that are safe and healthful for the employees therein.
"Employer" includes, but is not limited to, a person in a
multiemployer place of employment who, with respect to any other
employee at the place of employment, does any of the following:
(a) Employs the exposed employee.
(b) Creates the hazard.
(c) Is responsible, by contract or through practice, for safety
and health conditions.
(d) Is responsible for correcting the hazard.
SEC. 13.
SEC. 12. Section 6423 of the Labor Code is amended to read:
6423. Any corporation, limited liability company, or person
6423. Except where another penalty is specifically provided,
every employer and every officer, management official, or supervisor
having direction, management, control, or custody of any
employment, place of employment, or of any other employee, who does
any of the following is guilty of a misdemeanor:
(a) Knowingly or negligently violates any standard, order, or
special order, or any provision of this division, or of any part
thereof in, or authorized by, this part the violation of which is
deemed to be a serious violation pursuant to Section 6432.
(b) Repeatedly violates any standard, order, or special order, or
provision of this division, or any part thereof in, or authorized by,
this part, which repeated violation creates a real and apparent
hazard to employees.
(c) Fails or refuses to comply, after notification and expiration
of any abatement period, with any such standard, order, special
order, or provision of this division, or any part thereof, which
failure or refusal creates a real and apparent hazard to employees.
(d) Directly or indirectly, knowingly induces another to commit
any of the acts in subdivisions (a), (b), or (c).
Any violation of the provisions of subdivision (b), (c), or
(d) of this section is punishable by imprisonment in a county
jail for a term not exceeding one year, or by a fine not exceeding
two hundred thousand dollars ($200,000)
twenty-five thousand dollars ($25,000) , or by both that
imprisonment and fine. If the defendant is a corporation or a
limited liability company, the fine shall not be less that
one hundred thousand dollars ($100,000) but may than
twenty-five thousand dollars ($25,000), but may not exceed
one million dollars ($1,000,000) two hundred
fifty thousand dollars ($250,000) . However, a court may
impose a fine for a violation of this section by a corporation in an
amount less than one hundred thousand dollars ($100,000)
twenty-five thousand dollars ($25,000) if the
court finds that it is in the interest of justice to do so and states
its findings and reasons on the record.
SEC. 14.
SEC. 13. Section 6424 is added to the Labor Code, to read:
6424. For purposes of construing this chapter, the
following rules of construction apply:
(a) To the criminal provisions of this chapter, to
the extent that a word or term of this chapter is defined in
Section 7 of the Penal Code, the definitions of Section 7 of the
Penal Code govern the interpretation of that word of
or term.
(b) In addition to the definition of "negligence" in Section 7 of
the Penal Code, any act or failure to act that is inconsistent with
any standard, special order, or any provision of this division or of
Section 25910 of the Health and Safety Code, constitutes evidence of
negligence.
(c) An "employer" includes, but is not limited to, a person in a
multiemployer place of employment who, with respect to any other
employee at the place of employment, does any of the following:
(a) Employs the exposed employee.
(b) Creates the hazard.
(c) Is responsible, by contract or through practice, for safety
and health conditions.
(d) Is responsible for correcting the hazard.
SEC. 15.
SEC. 14. Section 6425 of the Labor Code is amended to read:
6425. (a) Every corporation, limited liability company,
or person Any employer and any employee having
direction, management, control, or custody of any employment, place
of employment, or of any other employee, who willfully violates any
occupational safety or health standard, order, or special order, or
any provision of this division or of Section 25910 of the Health and
Safety Code, and that violation caused death to any employee, or
caused permanent or prolonged impairment of the body of any employee,
is guilty of a public offense punishable by imprisonment in a county
jail for a term not exceeding one year, or by a fine not exceeding
two hundred fifty thousand dollars ($250,000)
one hundred thousand dollars ($100,000) , or by both that
imprisonment and fine; or by imprisonment in the state prison for 16
months, or two or three years, or by a fine of not less
more than two hundred fifty thousand dollars
($250,000) but not exceeding one million dollars
($1,000,000) , or by both that imprisonment and fine; and
in either case, if the defendant is a corporation or a limited
liability company, the fine shall not be less than five
hundred thousand dollars ($500,000) two hundred fifty
thousand dollars ($250,000) but may not exceed five
million dollars ($5,000,000) two million dollars
($2,000,000) .
(b) If the conviction is for a violation committed after a first
conviction of the person or corporation
defendent for any crime involving a violation of
occupational safety and health provisions subdivision
(a) , punishment shall be by imprisonment in the state prison
for two, three, or four years, or by a fine no less than
five hundred thousand dollars ($500,000) but not exceeding five
million dollars ($5,000,000), or by both not exceeding
two hundred fifty thousand dollars ($250,000), or by both that
fine and imprisonment, but if the defendant is a corporation or a
limited liability company, the fine shall not be less than one
million dollars ($1,000,000) but may not exceed ten million
dollars ($10,000,000) four million dollars
($4,000,000) .
(c) However, a court may impose a fine for a violation of this
section less than the minimum specified in this section if the court
finds that it is in the interest of justice to do so and states its
findings and reasons on the record.
(d) This section does not prohibit a prosecution under Section 192
of the Penal Code.
SEC. 16.
SEC. 15. Section 6427 of the Labor Code is amended to read:
6427. Any corporation or limited liability company, and every
employer who creates a hazard, controls the work or the premises, or
is responsible for correction of a hazard
6427. Any employer who violates any occupational safety or
health standard, order, or special order, or any provision of this
division or of Section 25910 of the Health and Safety Code, and the
violation is specifically determined not to be of a serious nature,
may be assessed a civil penalty of up to seven thousand dollars
($7,000) for each violation.
SEC. 17.
SEC. 16. Section 6428 of the Labor Code is amended to read:
6428. Any corporation or limited liability company, and every
employer who creates a hazard, controls the work or the premises, or
is responsible for correction of a hazard
6428. Any employer who violates any occupational safety or
health standard, order, or special order, or any provision of this
division or of Section 25910 of the Health and Safety Code, if that
violation is a serious violation, shall be assessed a civil penalty
of up to twenty-five thousand dollars ($25,000) for each violation.
Employers who do not have an operative injury prevention program
shall receive no adjustment for good faith of the employer or history
of previous violations as provided in paragraphs (3) and (4) of
subdivision (c) of Section 6319.
SEC. 18.
SEC. 17. Section 6429 of the Labor Code is amended to read:
6429. (a) Any corporation or limited liability company who
creates a hazard, controls the work or the premises, or is
responsible for correction of a hazard, and every
6429. Any employer who willfully or repeatedly violates any
occupational safety or health standard, order, or special order, or
any provision of this division or of Section 25910 of the Health and
Safety Code, may be assessed a civil penalty of not more than seventy
thousand dollars ($70,000) for each violation, but in no case less
than five thousand dollars ($5,000) for each willful violation.
(b) Any corporation or limited liability company, who creates a
hazard, controls the work or the premises, or is responsible for
correction of the hazard, and every
(b) Any employer who repeatedly violates any occupational
safety or health standard, order, or special order, or any provision
of this division or of Section 25910 of the Health and Safety Code,
shall not receive any adjustment of a penalty assessed pursuant to
this section on the basis of the regulations promulgated pursuant to
subdivision (c) of Section 6319 pertaining to the good faith of the
employer or the history of previous violations of the employer.
(c) Any past violation by any corporation or limited
liability company, and every employer who creates a hazard, controls
the work or the premises, or is responsible for correction of the
hazard, occurring employer occuring anywhere
within the state within the previous five years of any occupational
safety or health standard, order, or special order, or any provision
of this division or of Section 25910 of the Health and Safety Code,
shall be used to establish whether a current violation is a repeat
violation, and shall constitute evidence of willfulness for purposes
of this section.
(d) The division shall preserve and maintain records of its
investigations and inspections and citations for a period of not less
than seven years.
SEC. 19.
SEC. 18. Section 6430 of the Labor Code is amended to read:
6430. (a) Any corporation or limited liability company who
creates a hazard, controls the work or the premises, or is
responsible for the correction of a hazard, and every
6430. (a) Any employer who fails to correct a violation of
any occupational safety or health standard, order, or special order,
or any provision of this division or of Section 25910 of the Health
and Safety Code, within the period permitted for its correction shall
be assessed a civil penalty of not more than twenty-five thousand
dollars ($25,000) for each day during which the failure or violation
continues.
(b) Notwithstanding subdivision (a), for any employer who submits
a signed statement affirming compliance with the abatement terms
pursuant to Section 6320, and is found upon a reinspection not to
have abated the violation, any adjustment to the civil penalty based
on abatement shall be rescinded and the additional civil penalty
assessed for failure to abate shall not be adjusted for good faith of
the employer or history of previous violations as provided in
paragraphs (3) and (4) of subdivision (c) of Section 6319.
(c) Notwithstanding subdivision (a), any corporation or
limited liability company and every employer who creates a hazard,
controls the work or the premises, or is responsible for correction
of a hazard, who submits a employer who submits a
signed statement affirming compliance with the abatement terms
pursuant to subdivision (b) of Section 6320, and is found not to have
abated the violation, is guilty of a public offense punishable by
imprisonment in a county jail for a term not exceeding one year, or
by a fine not exceeding one hundred thousand dollars ($100,000), or
by both that fine and imprisonment; or by imprisonment in
the state prison for 16 months, or two or three years, or by a fine
not less than fifty thousand dollars ($50,000) but not exceeding two
hundred fifty thousand dollars ($250,000), or by both that fine and
imprisonment; and in either case, but if the
defendant is a corporation or a limited liability company
the fine shall be not less than one hundred thousand dollars
($100,000) but not exceed one million dollars ($1,000,000). However,
a court may impose a fine for a violation of this subdivision in an
amount less than the minimum specified in this subdivision if the
court finds that it is in the interest of justice to do so and states
its findings and reasons on the record.
SEC. 20.
SEC. 19. Section 6432 of the Labor Code is amended to read:
6432. (a) As used in this part, a "serious violation" shall be
deemed to exist in a place of employment if any of the following
conditions exist:
(1) There is a substantial probability that death or serious
physical harm could result from a violation, including, but not
limited to, any of the following circumstances:
(A) An exposure exceeding an established permissible exposure
limit.
(B) The existence of an unsafe or unhealthful condition.
(C) The existence of one or more practices, means, methods,
operations, or processes which have been adopted or are in use, in
the place of employment.
(2) The violation results in occupational injuries or illnesses
that are indicative of a condition that may result in serious
physical harm.
(b) Notwithstanding subdivision (a), a serious violation shall not
be deemed to exist if the employer can demonstrate that it did not,
and could not with the exercise of reasonable diligence, know of the
presence of the violation.
(c) As used in this section, "substantial probability" refers not
to the probability that an accident or exposure will occur as a
result of the violation, but rather to the probability that death or
serious physical harm will result assuming an accident or exposure
occurs as a result of the violation. A substantial probability of
serious injury also shall exist if any single serious injury has been
caused by the violation.
SEC. 21.
SEC. 20. Section 6434 of the Labor Code is repealed.
SEC. 22.
SEC. 21. Section 6435 of the Labor Code is amended to read:
6435. Any corporation or limited liability company and every
employer who creates a hazard, controls the work or premises, or is
responsible for correction of a hazard, who violates any of the
requirements of Chapter 6 (commencing with Section 6500) of this part
shall be assessed a civil penalty under the appropriate provisions
of Sections 6427 to 6430, inclusive.
SEC. 23. Section 6719 is added to the Labor Code, to read:
6719. (a) The Legislature finds and declares all of the
following:
(1) In 1993, the Legislature adopted Section 6357 to require the
Occupational Safety and Health Standards Board, on or before January
1, 1995, to adopt standards for ergonomics in the workplace designed
to minimize the instances of injury from repetitive motion.
(2) The standards board failed to follow this mandate, by failing
to adopt ergonomics standards by January 1, 1995, and then by
adopting a regulation concerning ergonomics that was not designed to
minimize the instances of injury from repetitive motion because it
contained exemptions and loopholes.
(3) The ergonomics regulation adopted by the standards board was
held to be invalid in part by a court because it did not fulfill the
mandate of Section 6357, and litigation concerning the validity of
the regulation is still pending.
(4) The purpose of this section is to mandate a minimum standard
for ergonomics in the workplace so as to effectuate the original
intent and purpose of Section 6357, as adopted in 1993, and to avoid
continuing litigation.
(b) On and after January 1, 2000, the division shall enforce this
section through all appropriate means, including, but not limited to,
issuing citations and penalties for any violation of this section
pursuant to Section 6317. By January 15, 2000, the standards board
also shall enforce the following requirements pertaining to a job,
process, or operation if any of the following exists:
(1) A repetitive motion injury (RMI) has occurred to one or more
employees engaged in the job, process, or operation. For the
purposes of this section, an RMI is an injury or illness that results
in any of the following:
(A) Fatalities, regardless of the time between the injury and
death, or the length of the illness.
(B) Lost workday cases, other than fatalities, that result in lost
workdays.
(C) Nonfatal cases without lost workdays which result in transfer
to another job or termination of employment, or require medical
treatment, other than first aid, or involve loss of consciousness or
restriction of work or motion. The injuries or illnesses specified
in this subparagraph also includes any diagnosed occupational
illnesses which are reported to the employer but are not classified
as fatalities or lost workday cases.
(2) A pattern of symptoms or physical signs of work-related RMIs
among one or more employees engaged in a job, process, or operation
has been identified or reported.
(3) One or more employees are exposed to hazards causing or
contributing to or likely to cause or contribute to RMI.
(4) One or more employees of an employer are in a work activity
substantially similar to a job, process, or operation where an RMI or
pattern of symptoms of an RMI has been identified or reported at the
employer's place of employment. "Substantially similar work
activity" means that one or more employees are performing similar
tasks, including, but not limited to, word processing, assembly, or
loading.
(c) Each employer subject to this section shall establish and
implement a program designed to prevent and minimize RMIs. The
program shall include a worksite evaluation, control of exposures
which are causing or contributing to or likely to cause or contribute
to RMIs, and training of employees.
(1) Each job, process, or operation covered by this section, or a
representative number of those jobs, processes, or operations, shall
be evaluated for exposures that are causing or contributing to or
likely to cause or contribute to RMIs.
(2) Any exposures that are causing or contributing to or likely to
cause or contribute to RMIs shall be corrected in a timely manner
or, if not capable of being corrected, shall be minimized to the
extent feasible. The employer shall utilize a hierarchy of controls,
beginning with engineering controls, such as work station redesign,
adjustable fixtures, or tool redesign, and administrative controls
such as job rotation, work pacing, or work breaks.
(3) Employees and supervisors performing or supervising a job,
process, or operation to which this section applies shall be provided
training that includes an explanation of at least the following:
(A) The employer's program.
(B) Exposures that have been associated with RMIs.
(C) Symptoms and consequences of injuries caused by repetitive
motion.
(D) The importance of reporting symptoms and injuries to the
employer.
(E) Methods used by the employer to prevent and minimize RMIs.
(d) Regulations adopted pursuant to this section are expressly
exempted from the provisions of Article 5 (commencing with Section
11346) of Chapter 3.5 of Part 1 of Division 3 of Title 2 of the
Government Code.
(e) This section does not prohibit the Occupational Safety and
Health Standards Board from acting pursuant to its authority to
promulgate regulations in Section 142.3 to amend its regulations if
the amendments do not reduce the protection with respect to RMIs
afforded workers by the standard set forth in this section.
SEC. 24.
SEC. 22. Section 6719 is added to the Labor Code, to read:
6719. The Legislature reaffirms its concern over the prevalence
of repetitive motion injuries in the workplace and reaffirms the
Occupational Safety and Health Standards Board's continuing duty to
carry out Section 6357.
SEC. 23. No reimbursement is required by this act pursuant
to Section 6 of Article XIIIB of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIIIB of the California Constitution.