BILL ANALYSIS                                                                                                                                                                                                    






Senate Committee on Industrial  
Relations      1999-2000 Regular Session Hilda L. Solis,  
Chair                         
                                        Fiscal:   Yes
                                        Urgency:  No
                                   
                              
                      Bill No: AB 1127
                      Author: Steinberg
             Version: As Amended June 29, 1999


Subject:

Occupational Safety and Health: standards and penalties

Support:

California Labor Federation, AFL-CIO  (co-sponsor)
Los Angeles District Attorney's Office (co-sponsor)
California District Attorneys Association
Attorney General Bill Lockyer
Amalgamated Transit Union Members Local 192
American Federation of State, County, and Municipal  
Employees
California Applicants' Attorneys Association
California Conference Board of the Amalgamated Transit  
Union
California Conference of Machinists
California Professional Firefighters
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers and Scientists of California, Local 20 IFTPE
Hotel Employees and Restaurant Employees International  
Union
PRIO Corporation
Region 8 States Council of the United Food and Commercial  
Workers Union
WORKSAFE!

Opposition:

California Chamber of Commerce
California Manufacturers Association
City of Los Angeles
City of Vernon









California State Association of Counties
Kern County Superintendent of Schools
Fresno County Office of Education
Accesio Products
American Electronics Association
American Energy Operations, Inc.
American Fence Contractors Association, California Chapter
Associated General Contractors of California
Associated General Contractors of San Diego
Associated Builders and Contractors
Association of California School Administrators
Brea Canon Oil Co., Inc.
California Association of Health Facilities
California Beer and Beverage Distributors
California Business Properties Association
California Cast Metals Association
California Fence Contractors' Association
California Healthcare Association
California Independent Petroleum Association
California League of Food Processors
California Poultry Industry Federation
California Railroad Industry
California Restaurant Association
California Retailers Association
California School Boards Association
California School Bus Contractors Association
California Self-Insurers Association
California Small Business Association
California Trucking Association
Californians for Compensation Reform
Coalition for Common Sense
Commercial Transfer, Inc.
Construction Employers' Association
Construction Preliens & Paperwork
Custom Plastics
Eastern Municipal Water District
Ed Vance Company
Engineering Contractors' Association
Food Express, Inc.
Frank C. Alegre Trucking, Inc.
Gary Olson Trucking, Inc.
Hearing Date:  June 23, 1999                          AB  
1127  
Consultant: Patrick Henning                            Page  
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Greater Bakersfield Chamber of Commerce
Hoyt-McKittrick Oil Company
Independent Oil Producers Agency
Jay Dee Transport
Latin Business Association
Marin Builders' Exchange
Mid Coast Transportation, Inc
Meehleis Modular Buildings, Inc
Mike Conrotto Trucking
Motion Picture Association
Mountain Cascade Inc.
National Federation of Independent Business
Pool California Energy Services, Inc.
Printing Industries of California
Sacramento Builders' Exchange
Silicon Valley Manufacturing Group
Small Manufacturers Association of California
Stream Energy, Inc.
Swanson Farms
The Gate Guy
The Industrial Company
Western States Petroleum Association
Wine Institute
Woodwork Institute of California

Purpose:

To provide omnibus reform of the Cal-OSHA program relating  
to civil and criminal penalties and enforcement procedures.

Analysis:

  Existing law  provides a framework for a safe and healthy  
workplace through the California Occupational Safety and  
Health Act (Cal-OSHA) for the adoption and enforcement of  
standards.  Among other things, there are 3 key branches of  
the Cal-OSHA program in the Department of Industrial  
Relations relating to standards: 
     -the Cal-OSHA Standards Board adopts standards;
     -the Division of Occupational Safety and Health (DOSH)  
     enforces standards; and,
Hearing Date:  June 23, 1999                          AB  
1127  
Consultant: Patrick Henning                            Page  
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     -the Cal-OSHA Appeals Board hears appeals of employers  
cited by DOSH.     
 
  Also, under the following categories:
  
  Penalties 
  Civil and criminal penalties are assessed for violation of  
Cal-OSHA standards or orders.  Most penalty assessments can  
be adjusted to reflect the seriousness of the violation and  
the safety record of the employer. 
 
-for a serious violation of a standard, a maximum civil  
penalty of  $7,000;

-misdemeanor penalties (i.e., for knowledge and negligence)  
for a serious violation, up to 6 months in jail, and/or a  
maximum of $5,000;

-for a willful or repeat violation, causing death or  
serious injury, a civil penalty of not less than $5,000 nor  
more than $70,000;

-for a willful violation, causing death or permanent or  
prolonged impairment, a criminal misdemeanor penalty, up to  
six months in jail and/or a maximum of $70,000; for  
subsequent violations, not less than $35,000 and/or up to 1  
year in jail.

-for failure to abate a serious hazard, not more than  
$7,000 each day until abatement achieved;

-public employers are not subject to civil penalties for  
violating a safety standard.
  
Subsequent Violations: Civil Penalty Enhancements
  -by Regulation, a subsequent violation may not be  
considered a repeat violation unless it occurred at the  
same fixed establishment as the previous violation, or in  
the same DOSH region for non-fixed site employers.

  Abatement of Hazard
Hearing Date:  June 23, 1999                         AB  
1127  
Consultant: Patrick Henning                            Page  
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 -by Regulation, an employer's duty after the issuance of a  
citation to abate an unsafe condition is stayed if the  
employer appeals the citation.

  Admissible Evidence
  -OSHA standards and orders may be used as evidence in  
criminal prosecution, but not as admissible evidence in  
negligence and wrongful death actions.

  Multi-Employer Responsibility  
-by Regulation, citations may be issued, not only against  
the employer which exposed an employee to a hazard, but  
also other responsible employers at a multiple employer  
worksite (e.g. construction).  Employers responsible for  
creating, controlling (by contract or practice), or  
correcting the hazard may be cited regardless of whether  
their own employees were exposed.   
  
Anti-Retaliation
  -an employee complaint filed with the Labor Commissioner  
claiming retaliation for reporting unsafe conditions or for  
refusal to work under such conditions must be filed within  
30 days of the occurrence.
  
This Bill  increases civil and criminal penalties for  
willful, serious, and repeat violations of Cal-OSHA  
standards and orders and revises civil penalty enforcement  
procedures.  Under the following categories, it makes the  
following changes:

  Penalties
  -for a serious violation, increases from $7,000 to a  
maximum of $25,000;   

-misdemeanor penalties for a serious violation, from a  
maximum of $5,000 to a maximum of $25,000 for an individual  
and adds $250,000 for a corporation.
  
  -for a willful or repeat violation, the maximum of $70,000  
is not changed, but for subsequent violations there shall  
be no adjustment in the penalty.  Past violations occurring  
Hearing Date:  June 23, 1999                          AB  
1127  
Consultant: Patrick Henning                            Page  
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anywhere in state within the previous five years shall be  
used to establish whether a current violation is a repeat  
violation.

-for willful violation criminal penalties, from $70,000 to  
a maximum of $100,000 and a jail term up to 1 year for an  
individual, or, upon discretion of the court, 16 months or  
2 or 3 years in jail and a maximum fine of $250,000.   If a  
corporation, not less than $250,000, or more than $2  
million.  For a repeat conviction, up to 4 years in jail  
for an individual and not less than $1 million or more than  
$4 million for a corporation.

-for failure to abate a hazard, from $7,000 per day to a  
maximum of $25,000.  If, after signing a statement  
attesting to compliance, and upon re-inspection, abatement  
has not been achieved, there will be no adjustment in the  
maximum.  Also, the individual is subject to a new maximum  
penalty of $100,000 and a jail term up to 1 year; for a  
corporation, not less than $100,000 or more than $1  
million.

-repeals the provision that civil penalties shall not be  
assessed against public employers.

  Subsequent Violations: Civil Penalty Enhancements  
-repeals the Regulation that limits civil penalty  
enhancements for repeat violations at the same fixed  
location of the worksite.

  Abatement of Hazard
  -provides that an order to abate an unsafe condition is not  
automatically stayed on appeal if DOSH determines  
substantial risk exists.  Establishes an expedited appeals  
hearing within 15 days. 

  Admissible Evidence
  -repeals the prohibition of admitting OSHA standards and  
orders as evidence in negligence and wrongful death actions  
and permits the evidence in all civil matters.

Hearing Date:  June 23, 1999                          AB  
1127  
Consultant: Patrick Henning                            Page  
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  Multi-Employer Responsibility  
-enacts in statute the current Regulation establishing  
responsibility for violation of a safety standard in a  
multi-employer worksite.

  Anti-Retaliation
  -extends from 30 days to 1 year the time period within  
which to file a complaint alleging retaliation for  
reporting an unsafe condition or refusal to work under such  
conditions.
  
Other Items 
  
-specifies that "employee's representative" for filing a  
complaint of unsafe conditions, to be, one's family member,  
union representative, lawyer, a health and safety  
professional,  or a representative of a government agency. 

-mandates that the Standards Board carry out its duty to  
adopt standards for ergonomics in the workplace designed to  
minimize the instances of injury from repetitive motion.   
Repeals current requirement to adopt the existing standard.

-clarifies that DOSH and prosecutors have the authority to  
issue civil citations for violations of not only the  
statute, but of promulgated regulations.
  
  -includes operational "process" of machinery and equipment  
as cause for DOSH to seek an injunction to restrain the use  
of unsafe use or operation if the condition constitutes a  
serious menace.  

Comments:

1.   Supporters  argue that the Cal-OSHA program has been  
weakened significantly during
     the past 16 years through a series of regulations,  
policies, and Appeals Board
     decisions.  They further state that while the majority  
of employers voluntarily comply
     with safety requirements, the existing penalties are  
Hearing Date:  June 23, 1999                          AB  
1127  
Consultant: Patrick Henning                            Page  
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too low to effectively deter those
     employers who do not comply.
 
2.   Opponents  argue, among other things, that existing laws  
are adequate and that this
     measure inappropriately increases civil and criminal  
penalties, and changes key
     provisions of current law at a time when safety  
violations are at an all time low. They
     further argue that this bill will make it difficult to  
hire managers and supervisors, and
     will have a chilling effect on business being willing  
to locate or expand their
     workforce in California.  

Generally, opponents state that the onerous provisions of  
the measure relate to due process, expansion of those who  
can file a complaint (e.g., a family member could file  
without an employee's knowledge), higher penalties, and  
longer time limits to file complaints.  These elements make  
settlement more difficult and subject law-abiding  
businesses to harassment.

Some opponents argue that it would require possible  
abatement of an alleged hazard before an employer has filed  
an appeal.  And, when found innocent through the appellate  
process, an employer would have already spent significant  
time and money fixing what was never a violation.   
Proponents counter that a collapsed trench or a leaky gas  
pipe should be repaired regardless of whom is finally  
responsible for the unsafe condition; more workers could be  
injured.

Public agencies argue that removing their exemption merely  
creates a costly accounting system, exchanging funds from  
one public agency to another.

3.  Multi-Employer Responsibility  .  In a multi-employer  
setting, DOSH has followed past
    Appeals Board decisions narrowly interpreting the  
definition of an employer to be
Hearing Date:  June 23, 1999                         AB  
1127  
Consultant: Patrick Henning                            Page  
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    limited to the employer of the exposed employee.   
Following a complaint to the U.S.
    Department of Labor that California failed to meet  
minimum OSHA requirements, the
    Department of Industrial Relations adopted a regulation  
establishing multi-employer
    responsibility.  Some employers have taken the position  
that the regulation is
    unenforceable on the grounds regulations are not  
binding on the Appeals Board.  This
    measure incorporates into statute, the multi-employer  
responsibility regulations and
    makes them explicitly enforceable.

4.   Ergonomics  . After years of controversy, litigation, and  
a statutory deadline, the
     Standards Board adopted an ergonomics standard with,  
among other things, a small
     business exemption.  In the case of  Pulaski v.  
Occupational Safety and Health
       Standards Board  , a Superior Court declared parts of  
the standard, including a
     controversial small-employer exemption, invalid.  The  
court's order is on appeal.  
     This measure would reaffirm the Legislature's concern  
over the prevalence of
     repetitive motion injuries in the workplace and  
Standards Board's continuing duty to
     adopt a complete standard.

5.   Prior Legislation  .  This measure contains the subject  
matter of a series of past bills.
     Under the categories below, the following passed the  
Legislature and were vetoed:

-Penalties: The enhanced criminal penalty provisions are  
drawn from AB 1015 (Knox) of 1997, which was sponsored by  
the Los Angeles District Attorneys office.  It was vetoed  
by Governor Wilson.
 
-Filing of Anti-Retaliation Claims:  The extension of the  
Hearing Date:  June 23, 1999                          AB  
1127  
Consultant: Patrick Henning                            Page  
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time for a worker subjected to retaliation for complaining  
about unsafe working conditions was contained in AB 2156  
(Keeley) of 1998, which was passed by the vetoed by  
Governor Wilson
 
-Abatement: Governor Wilson twice vetoed bills which would  
have required cited employers to seek a stay of an  
abatement order under specified circumstances.  The bills  
were SB 1464 (Marks) in 1994 and SB 1935 (B. Greene) in  
1992.
 
-Public Employer Penalty Exemption Repeal:  Governor Wilson  
twice vetoed bills which would have repealed government  
immunity from OSHA civil penalties.  These bills were AB  
3831 (Horcher) 
in 1994 and SB 2277 (Burton) in 1992.
 
6.   Double Referral  .  If this measure passes this  
committee, it will be double referred to
     the Senate Committee on Public Safety.

7.   Legislative History  .  This measure passed the Assembly  
Labor and Employment
     Committee by a 6 to 2 vote, the Assembly Public Safety  
Committee by a 5 to 3 vote,
     and the Assembly Floor by a 45 to 32 vote. 












Hearing Date:  June 23, 1999                          AB  
1127  
Consultant: Patrick Henning                            Page  
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Senate Committee on Industrial Relations