BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair A
1999-2000 Regular Session B
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AB 1127 (Steinberg) 7
As Amended July 12, 1999
Hearing date: July 13, 1999
Labor Code
MK:jm
EMPLOYEE SAFETY: VIOLATIONS
HISTORY
Sources: Los Angeles District Attorney's Office; Attorney
General; California Labor Federation, AFL-CIO
Prior Legislation:AB 1015 (Knox) 1998 - vetoed
AB 2156 (Keeley) 1998 - vetoed
SB 1464 (Marks) 1994 - vetoed
AB 3831 (Horcher) 1994 - vetoed
SB 1935 (B. Greene) 1992 - vetoed
SB 2277 (Burton) 1992 - vetoed
AB 1545 (Friedman) Chapter 599, Statutes of
1991
AB 150 (Assembly Select Committee on Industrial
Safety)
Chapter 993, Statutes of 1973
Support: (See Comment #6)
Opposition: (See Comment #6)
Assembly Floor Vote: Ayes 45 - Noes 32
KEY ISSUES
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SHOULD THE MISDEMEANOR PENALTIES FOR A REPEATED VIOLATION
OF AN ORDER OR FAILURE TO COMPLY WITH AN ORDER WHICH
CREATES A REAL HAZARD TO EMPLOYEES BE INCREASED?
(CONTINUED)
SHOULD IT BE AN ALTERNATE MISDEMEANOR/FELONY ("WOBBLER") FOR AN EMPLOYEE TO
WILLFULLY VIOLATE AN OCCUPATIONAL SAFETY OR HEALTH STANDARDS AND THEREBY CAUSE
THE DEATH TO ANY EMPLOYEE OR CAUSE PERMANENT OR PROLONGED INJURY TO THE
EMPLOYEE?
SHOULD A SECOND WILLFUL VIOLATION OF AN OCCUPATIONAL SAFETY OR HEALTH STANDARD
CAUSING DEATH OR PERMANENT OR PROLONGED INJURY TO AN EMPLOYEE BE A FELONY?
SHOULD CIVIL PENALTIES FOR OCCUPATIONAL SAFETY OR HEALTH STANDARDS BE
INCREASED?
SHOULD OTHER CHANGES BE MADE TO THE LABOR CODE REGARDING THE ENFORCEMENT OF
HEALTH AND SAFETY CODE VIOLATIONS?
PURPOSE
The purpose of this bill is to increase the civil and
criminal penalties for violations of statutes and
regulations regarding worker safety and make related
changes to Labor Code provisions regarding worker health
and safety.
In existing law , the Penal Code defines specified terms for
the purposes of the Penal Code, including:
"willfully" when applied to the intent with which an act
is done or omitted, implies simply a purpose or
willingness to commit the act or make the omission
referred to. It does not require any intent to violate
law, or to injury another, or to acquire any advantage.
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"negligently" imports a want of such attention to the
nature or probable consequences of the act or omission as
a prudent man ordinarily bestows in acting in his own
concerns.
"knowingly" imports only of a knowledge that the facts
exist which bring the act or omission within the
provisions of the code. (Penal Code 7)
This bill adopts the above definitions and all other
definitions referenced in Penal Code 7 for the purpose of
defining terms in the criminal provisions of this bill.
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 who does
any of the following is guilty of a misdemeanor punishable
by up to six months in county jail and/or a fine not
exceeding $5,000:
Knowingly or negligently violates any standard, or
special order, or any provision of this division the
violation of which is deemed to be a serious violation.
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.
Fails or refuses to comply, after notification and
expiration of any abatement period, which 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.
Directly or indirectly or knowingly induces another to do
any of the above. (Labor Code 6423)
This bill increases the penalty for repeated violations or
failure to comply or inducing others to do the above to up
to one year in county jail and/or a $15,000 fine.
This bill also creates a separate penalty if the violator
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is a corporation or limited liability company. That
penalty shall be not more than $150,000, however the bill
specifically states that in determining the amount of fine
to impose, the court shall consider all relevant
circumstances including the nature, circumstance, extent
and gravity of the violation, any prior history of
violations and the ability of the defendant to pay.
Existing law provides that battery is any willful and
unlawful use of force or violence upon the person of
another. (Penal Code 242)
Existing law provides that when a battery is committed
against any person and serious bodily injury is inflicted
on the person it is an alternate misdemeanor/felony
"wobbler" punishable by imprisonment in the county jail up
to one year or in state prison for 2, 3, or 4 years. (Penal
Code 243(d))
Existing law provides that manslaughter is the unlawful
killing of a human being without malice. (Penal Code 192)
Existing law provides that manslaughter is involuntary when
committed in the commission of an unlawful act, not
amounting to a felony; or in the commission of a lawful act
which might produce death, in an unlawful manner, or
without due caution and circumspection. (Penal Code
192(b))
Existing law provides that involuntary manslaughter is a
felony punishable by imprisonment in state prison for 2, 3,
or 4 years. (Penal Code 193(b))
Existing law provides that any employer, and every employee
having direction, management, control, or custody of any
employment, place of employment or other employee, who
willfully violates any occupational safety or health
standard, order or special order, or Section 25910 of the
Health and Safety Code, and that violation caused death to
any employee, or caused permanent or prolonged impairment
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of the body of any person is guilty of a misdemeanor
punishable by up to 6 months in jail and/or a fine not to
exceed $70,000. If the conviction is for a violation
committed after a first conviction punishment shall be by a
$35,000-$70,000 fine and/ up to one year in jail. (Labor
Code 6425)
This bill makes the above offense a "wobbler" for a first
offense punishable by either one year in county jail and/or
a fine not exceeding $100,000, or, 16 months, 2 or 3 years
and/or a fine of not more than $250,000 for a first
offense.
This bill makes it a felony when the person has a prior
conviction for Labor Code 6423 which shall be punishable
by 16 months, 2 or 3 years and/or a fine not exceeding
$250,000.
This bill makes it a felony when the person has a second
violation of the same offense which shall be punishable by
2, 3 or 4 years and/or a fine not exceeding $250,000.
This bill also creates a separate penalty for a corporation
or a limited liability company for the above offense. This
bill provides that a first offense by a corporation is
punishable by a not less than $2,000,000; a second offense
when the prior was Labor Code 6423 is punishable by a fine
of $500,000 to $3,000,000 and a second offense when the
prior offense is for the same violation is punishable by
$1,000,000 to $4,000,000.
This bill specifically provides that the court shall
consider the gravity of the offense, any prior history of
violations, and the defendant's ability to pay when
considering the amount of the fine.
Existing law prohibits and regulates the use and removal of
asbestos. (Health and Safety Code 25910)
Existing law provides that any employer who violates any
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occupational safety or health standard, order, or special
order, or Section 25910 of the Health and Safety Code; and
the violation is specifically not determined to be serious
in nature, may be assessed a civil penalty of up to $7,000
for each violation. (Labor Code 6427)
This bill adds a violation of "any provision of this
Division related to health or safety of employees" to the
above provision and subjects those violations to the up to
$7,000 civil penalties.
Existing law provides any employer who commits a serious
violation of any occupational safety or health standard,
order, special order, or Section 25910 of the Health and
Safety Code shall be assessed a civil penalty of up to
$7,000 for each violation and that the violation should not
be reduced under specified provisions if the employer does
not have an operative injury prevention program. (Labor
Code 6428)
This bill adds a violation of "any provision of this
Division related to health or safety of employees" to the
above provision and increases the penalties to up to
$25,000.
Existing law provides any employer who willfully or
repeatedly violates any occupational safety or health
standard, order, or special order or Section 25910 of the
Health and Safety Code, may be assessed a civil penalty of
$5,000-$70,000. (Labor Code 6429)
This bill adds a violation of "any provision of this
Division related to health or safety of employees" to the
above provision; keeps existing penalties; provides any
repeatedly violates any of the things listed above shall
not receive any adjustment to the fine; provides that any
past similar violation by any employer occurring anywhere
within the state within the previous five years shall be
used to establish the current violation is a repeat
violation; and provides that the division shall preserve
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and maintain records of its investigations and inspections
and citations for a period of not less than seven years.
Existing law provides that any employer who fails to
correct a violation of any occupational safety or health
standard, order, or special order, or 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 $7,000 for each day a violation occurs. (Labor Code
6430(a))
Existing law provides that notwithstanding the above, any
employer who submits a signed statement affirming
compliance with the abatement terms and is found upon
inspection 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. (Labor Code 6430(b)
This bill adds a violation of "any provision of this
Division related to health or safety of employees" to
6430; and provides that notwithstanding 6430(a) any
employer who submits a signed statement affirming
compliance with the abatement terms and is found not to
have abated the violation is punishable by a misdemeanor
punishable by up to one year in jail and/ or a fine up to
$100,000 and if the defendant is a corporation or limited
liability company the fine shall be $100,000-$1,000,000.
Existing law provides that a "serious violation" shall be
deemed to exist in a place of employment if there is a
substantial probability that death or serious physical harm
could result from a serious exposure exceeding the
permissible exposure limit or a condition which exists, or
from one or more practices, means, methods, operations, or
processes which have been adopted or are in use, in the
place of employment unless the employer did not, and could
not with the exercise of reasonable diligence, know of the
presence of the violation. (Labor Code 6432(a))
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This bill provides instead that a "serious violation" shall
be deemed to exist in a place of employment if either of
the following conditions exist:
There is a substantial probability that death or serious
physical harm could result from a violation including but
not limited to circumstances where there is a substantial
probability that either of the following could result in
death or great bodily injury: an exposure exceeding an
established permissible limit; 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.
The violation results in occupational injuries or
illnesses that are indicative of a condition that may
result in serious harm.
Existing law provides that every employer shall furnish a
safe and healthful place of employment. (Labor Code 6400)
Existing regulations include in the definition of employer
for the purposes of civil penalties a multiemployer place
of employment who with respect to any other employee either
exposes the employee to a danger; creates a hazard; is
responsible for the safety and health conditions of the
workplace, either through practice or contract; or is
responsible for correction a hazard.
This bill codifies the above regulation.
Existing law provides that "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. (Labor Code 6432(b))
Existing law provides that any person who believes that he
or she has been discharged or discriminated against in
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violation of the Labor Code may file a complaint with the
Labor Commissioner within 30 days of the violation. (Labor
Code 98.7)
This bill extends that time limitation to one year.
Existing law provides that it is the intent of the
Legislature that the provisions of this division shall be
applicable to the proceedings against employers pursuant to
the provisions of Chapter 3 and Chapter 4 of this division
for the exclusive purpose of maintaining and enforcing
employee safety. Existing law also exempts any part of the
division from consideration in, admissibility into, or
evidence in any person injury or wrongful death action
except between an employee and his own employer. (Labor
Code 6304.5)
This bill changes the Legislative intent to include a
reference to the occupational safety and health standards
and orders promulgated under the Labor Code and changes the
admissibility rules to allow the admission of this division
and the occupational safety and health standards and orders
promulgated under the Labor Code to be admitted into
evidence in a personal injury or wrongful death action and
provides that the issuance or failure to issue a citation
by the division not be admissible in those actions.
Existing law provides that in enforcing occupational safety
and health standards and orders and special orders the
Division of Occupational Safety and Health may do specified
things including "require the performance of any other act
which the protection of the life and safety of the
employees in employments and places of employment
reasonably demands." (Labor Code 6308)
This bill changes that language to read "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.
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Existing law provides that if the Division of Occupational
Safety and Health learns or has reason to believe that any
place of employment is not safe or is injurious to the
welfare of any employee, it may on its own motion summarily
investigate that place with or without notice of hearings.
(Labor Code 6309)
Existing law provides that if the Division of Occupational
Safety and Health gets a complaint from an employee, the
employee's representative or an employer of an employee
directly involved in an unsafe place of employment, it
shall with or without notice of hearing investigate the
complaint within 3 days of a serious complaint and within
14 days of a non-serious complaint. (Labor Code 6309)
This bill defines employee's representative for the
purposes of the complaint initiating an investigation as
"an attorney, health or safety professional, union
representative, or representative of a government agency."
This bill also provides that inspection resources shall be
allocated to respond first to those situations in which
time is of the essence.
Existing law provides that if the Division of Occupational
Safety and Health determines that 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 it may
apply to the superior court in the county in which such
place of employment, machine, device, apparatus, or
equipment is situated for an injunction restraining the
operation. (Penal Code 6323)
This bill limits the jurisdiction to the place where the
employment or employee is situated.
Existing law provides that an application to the superior
court and the accompanying affidavit for the injunction in
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6323, described above, must show that the use or operation
constitutes a menace to the life and safety of any person
employed thereabout. It also provides that no bond is
required from the Division of Occupational Safety and
Health as a prerequisite for granting a restraining order.
(Labor Code 6324)
This bill provides instead that the affidavit must show
that either that the operation constitutes a menace or is
likely to cause death, serious injury or illness, or
serious exposure to an employee. It also extend the "no
bond" provision to any other state or local prosecutor.
Existing law provides that when in the opinion of the
Division of Occupational Safety and Health a place of
employment, machine, device, apparatus, or equipment or any
part thereof is in a dangerous condition, is not properly
guarded, or is dangerously placed so as to constitute an
imminent hazard to employees, its use can be prohibited by
the division and a conspicuous notice to the effect
attached. Such notice shall not be removed except by an
authorized representative of the division nor until it is
made safe and required safeguards or safety appliances or
devices are provided. (Labor Code 6325)
This bill provides that the Division of Occupational Safety
and Health may prohibit the use if it is likely to cause
death, serious injury or illness or serious exposure to an
employee as well as if it is an imminent hazard. It also
makes other technical changes to that section.
Under existing law the appeal of an alleged violation
suspends the running of the period of abatement.
This bill creates a new section providing that if the
Division of Occupational Safety and Health determines that
an alleged violation is serious and presents such a
substantial risk to the safety or health of employees that
the initiation of an appeal by the employer should not
suspend the running of the period for the abatement of that
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violation the citation issued shall include a statement of
that determination. If a citation contains such a
statement then at the time of filing for appeal the
employer may file a motion requesting the running for the
period of abatement be suspended during the appeal. This
bill makes it clear that the burden is on the Division to
establish that an abatement shall occur.
The bill provides that a hearing on that motion shall be
conducted within 15 days of filing the motion and sets up
factors to consider in deciding the motion. The bill also
provides that appeals for citations in these situations
shall have priority.
This bill contains language stating that the Legislature
reaffirms its concerns over the prevalence of repetitive
motion injuries.
COMMENTS
1. Need for the Bill
According to the author:
On Monday, June 8th, an employee of a
building-materials company in Southern California
was killed when he was sucked into a sand hopper,
buried and suffocated. While the investigation of
this latest workplace fatality has just begun, it
appears to be similar to a case described by the
representative of the Los Angeles District Attorney
in support of this measure.
From the district attorneys, Cal/OSHA officials,
and the Labor community, we have learned about a
series of horrifying and preventable accidents
where workers have been suffocated, crushed, or
burnt to death in California following willful
safety violations.
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The vast majority of California's employers follow
the law, and work hard to maintain safe and healthy
workplaces. There are a handful of employers,
however, who don't. For those employers, there is
no adequate penalty on the books. A willful safety
violation causing death or permanent injury of a
worker in this state is a misdemeanor with a
maximum penalty of $70,000. There are greater
penalties under pollution laws for discharges that
threaten wildlife, than for safety violations will
kill or maim workers.
2. Increases in Criminal Penalties
a. Violating any standard
Existing law creates a misdemeanor with a penalty of up
to 6 months in jail and/or a fine up to $5,000 for
repeatedly violating any standard order, special order,
etc. or for failing or refusing to comply with any
standard order, special order, etc. when the refusal
creates a real hazard for employees or for inducing
another to do the above.
This bill increases the penalty for these offenses to
up to one year in the county jail and/or $15,000.
This bill also provides for a separate penalty if the
violator is a corporation or limited liability company
providing for a fine of not more than $150,000 but also
states that in imposing the fine the court shall
consider the circumstances of the injury, whether prior
violations exist and the ability of the defendant to
pay.
should the criminal penalties for REPEATEDLY VIOLATING
an order from the division of occupational Safety and
Health or for refusing to comply with an order when
such failure creates a real or apparent hazard be
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increased?
b. Violation causing death or permanent or prolonged
impairment
Existing law creates a misdemeanor punishable by up to
6 months in jail and or a fine not to exceed $70,000
for any employer having direction, management, control
or custody of any place of employment, etc. who
willfully violates any occupational safety or health
standard etc and that violation caused death or caused
permanent or prolonged impairment of the body of a
person. Existing law provides that a second violation
is punishable by up to one year in jail and/or a fine
of $35,000-$70,000.
This bill makes the above offense a "wobbler"
punishable by either one year in county jail and/or a
fine up to $100,000 or by 16 months, 2 or 3 years in
prison and/or a fine up to $250,000.
This bill creates a separate penalty for a corporation
or a limited liability company providing for a fine of
not more than $2,000,000 for a first offense.
The bill provides that a second offense within seven
years of a conviction for a violation of any standard
creating a hazard which did not cause an actual injury
is a felony punishable by 16 month, 2 or 3 years and a
fine not exceeding $250,000. If the defendant is a
corporation or a limited liability company, the fine
shall be between $500,000 and not more than $3,000,000.
A second offense with a prior conviction for a
violation where there was an injury or death it would
be a straight felony punishable by 16, months, 2 or 3
years and/or a fine up to $250,000 and the penalty for
a corporation would be a fine of $1,000,000 to
$4,000,000 for a second offense.
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This section also contains a provision requiring the
court to consider the extent of the injury, past
violations and the ability of the defendant to pay.
Willfully, by reference to the Penal Code, when applied
to the intent with which an act is done or omitted,
implies simply a purpose or willingness to commit the
act or make the omission referred to. It does not
require any intent to violate law, or to injury
another, or to acquire any advantage.
By way of comparison, the penalty battery with serious
bodily injury is "wobbler" punishable by one year in
county jail or 2, 3 or 4 years in state prison.
Battery also requires a willful act and the injury
required is a lesser on than the one required in this
bill and could include loss of consciousness (no matter
how brief), a bone fracture or a wound requiring
numerous stitches. The penalty for involuntary
manslaughter is a straight felony punishable by
imprisonment in state prison for 2, 3, or 4 years.
Other white collar crime penalties include: Water Code
Section 1387(d)(1) which provides that waste discharge
which merely threatens to cause injury or death is a
felony punishable up to 15 years and a $1,000,000 fine;
Health and Safety Code Section 25189.6 provides that
disposal of waste which creates a risk of death or
great bodily injury punishable by up to 9 years in
state prison and a fine of $250,000 per day; Finance
Code Sections 5305-5310 provide that false financial
statement and other financial misconduct by saving and
loan executives is a felony punished by 2, 3, or 4
years in state prison and fines between $1,000,000 and
$5,000,000.
SHOULD THE PENALTY FOR AN EMPLOYER WHO WILLFULLY
VIOLATES A SAFETY STANDARD WHICH CAUSES THE DEATH OF OR
PERMANENT OR PROLONGED INJURY TO AN EMPLOYEE BE
INCREASED FROM A MISDEMEANOR TO A "WOBBLER?"
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SHOULD THE PENALTY FOR AN EMPLOYER WHO COMMITS A SECOND
WILLFUL VIOLATION OF A SAFETY STANDARD WHICH CAUSES THE
DEATH OF OR PERMANENT OR PROLONGED INJURY TO AN
EMPLOYEE BE INCREASED FROM A MISDEMEANOR TO A STRAIGHT
FELONY?
c. "Three-Strikes"
Some of the opposition argues that these penalties
shall be exempted from "three-strikes" and express
concern that some of their employees who are in
management positions may have prior convictions that
would constitute strikes.
In 1997 when this Committee heard AB 1015 (Knox) which
added a "wobbler" for a willful violation of a health
and safety standard which caused death this Committee
chose not to put in a "three-strikes" exemption because
it was determined that because the violation resulted
in death it was a "serious" felony.
SHOULD A "THREE-STRIKES" EXEMPTION BE ADDED TO This
BILL OR DOES THE FACT THAT THE ACT MUST CAUSE DEATH OR
PERMANENT OR PROLONGED INJURY MAKE This FELONY A
"VIOLENT" ONE?
d. Stating that abatement occurred but failing to
actually abate
Existing law provides for civil penalties for failing
to correct a violation of any OSHA standard, order,
etc. and provide that when an employer submits a signed
statement affirming compliance with abatement terms
when it is later discovered that the situation was not
abated specified adjustments to the fine shall not be
made. (For a discussion of adjustments, see comment #3)
This bill adds criminal penalties for signing a
statement affirming compliance but actually failing to
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comply. The penalties are up to one year in jail
and/or a fine up to $100,000 and if the defendant is a
corporation or limited liability company the fine shall
be $100,000-$1,000,000.
SHOULD IT BE A MISDEMEANOR FOR AN EMPLOYER TO SIGN A
STATEMENT AFFIRMING COMPLIANCE WITH AN ORDER TO CORRECT
AN OSHA VIOLATION BUT NOT ACTUALLY COMPLYING WITH THE
ORDER?
e. Higher fines for corporations.
Some of the opposition to this bill believes it is
inequitable to have the separate high fines for
corporations.
The California Beer and Beverage Distributors state
"the $4 million fine for corporations . . . is
unreasonable for family-owned corporations to be
subject to. Corporations should be treated the same as
other businesses or some distinction made for
family-owned corporations."
The Wine Institute states, "the bill's higher tier of
penalties against corporations establishes an unlevel
playing field for the vast majority of wineries who are
family-owned corporations compared to the fewer in
partnerships."
The proponents of this bill note that a business is
incorporated, in part, to limit the individual
shareholders' personal liability. Because of its
corporate status a corporation would avoid the other
jail or prison penalties in the bill because a
"corporation" can not serve time in one of these
facilities. Thus, this bill provides higher monetary
penalties to adjust, not only for the need to find a
fine that would "punish" a corporation, but also for
the fact that jail and prison time can not be imposed.
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In general, criminal penalties are imposed with a
consideration of ability to pay and this bill
specifically provides that in the interest of justice
the court may impose a fine lower than the minimum.
This essentially sets up the fine levels as suggested
fines but gives the court broad discretion to impose an
appropriate fine. Thus, for example, a court would be
unlikely to impose a fine that would exceed the
corporation's net earnings in past years.
ARE THE SEPARATE FINE ONLY PENALTIES FOR CORPORATIONS
AND LIMITED LIABILITY COMPANIES APPROPRIATE?
3. Civil Penalties
a. Violation of occupational safety or health standard
or order - not serious
Existing law provides that any employer who violates
any occupational safety or health standard, order, etc.
and the violation is specifically not determined to be
serious in nature, may be assessed a civil penalty up
to $7,000.
This bill keeps the same fine but expands the above to
include "any provision of this division related to the
health or safety of employees."
There was a discussion at the Public Safety Committee
hearing on July 6 to modify "provision" with
"statutory," but Legislative Counsel has informed the
author that "provision" does mean "statute" and since
that is the only possible definition, such a
modification would only lead to confusion in other
parts of the code.
b. Violation of occupational safety or health standard
or order - serious
Existing law provides that any employer who commits a
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serious violation of any occupational safety or health
standard, order, etc. may be assessed a civil penalty
up to $7,000 and that the fine should not be reduced
under specified provisions if the employer does not
have an operative injury prevention program.
This bill adds a violation of "any provision of this
Division related to health or safety of employees" to
the above provision and increases the penalties to up
to $25,000.
c. Willful or repeated violations of standards
Existing law provides that any employer who willfully
or repeatedly violates any occupational safety or heath
standard, order, etc. may be assessed a civil penalty
of $5,000-$7,000.
This bill keeps the existing penalties but provides
that the fines should not be adjusted. It also
provides that any past violation anywhere within the
state within the previous five years shall be used to
establish the current violation.
Opponents object to the expansion of repeat violations
to include violations anywhere within the state within
the previous five years and argue that the employer
should only be held responsible if the violation occurs
in the same location. One concern is that as
businesses combine, businesses could be liable for
violations occurring at previously unaffiliated
companies. Another argument is that two citations in a
five-year period is unreasonable because the violations
could be minor.
Proponents note that under existing law a company could
be cited committing the same safety violation at
multiple locations, even if the violation is one that
could have caused serious injury, that company could
not be cited for repeat violations.
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SHOULD TWO OR MORE REPEAT VIOLATIONS, EVEN AT DIFFERENT
FACILITIES, COUNT AS REPEAT VIOLATIONS FOR PENALTY
PURPOSES IF THEY OCCUR WITHIN FIVE YEARS?
SHOULD THE REPEAT VIOLATIONS BE LIMITED TO SERIOUS
VIOLATIONS OR MORE THAN TWO VIOLATIONS IF THEY ARE NOT
SERIOUS?
d. Standard required penalty reductions
The author, sponsors and supporters of this bill point
out that Cal/OSHA regulations provide for specified
penalty reductions to civil fines that will not be
changed by this bill. First it is determined whether a
violation was regulatory, general, serious, repeat or
willful. Then an initial base penalty is determined.
Then the initial base penalty is adjusted up or down by
up to 50% based on the size of the crew and the
likelihood of the injury. Then adjustments are made
based on the size of the employer, good faith of the
employer, and the history of previous violations. An
additional abatement credit of 50% is applied on the
presumption that an employer will abate the situation.
The author included in his background examples of OSHA
inspector worksheets which resulted in an initial
$1,000 fine being adjusted so that the final fine was
$50 based on these mandatory adjustments.
4. Definition Changes Made by This Bill
a. Serious violation
Under existing law, "serious violation" shall be deemed
to exist in a place of employment if there is a
substantial probability that death or serious physical
harm could result from a serious exposure exceeding the
permissible exposure limit or a condition which exists,
or from one or more practices, means, methods,
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operations, or processes which have been adopted or are
in use, in the place of employment unless the employer
did not, and could not with the exercise of reasonable
diligence, know of the presence of the violation.
This bill provides instead that a "serious violation"
shall be deemed to exist in a place of employment if
any of the following conditions exist:
There is a substantial probability that death or
serious physical harm could result from a violation
including but not limited to circumstances where there
is a substantial probability that either of the
following could result in death or great bodily
injury: an exposure exceeding an established
permissible limit; 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.
The violation results in occupational injuries or
illnesses that are indicative of a condition that may
result in serious harm.
Opponents are concerned about this revised definition
of "serious violation." For example the California
Beer and Beverage Distributors assert: "A single
exposure in excess of a permissible exposure limit may
pose no harm . . . "
However, the proponents point out that under the
proposed definition the "single exposure" must have a
"substantial probability that death or serious physical
harm could result from" the exposure, thus if the
single exposure poses no harm then it would not be a
"serious violation" under this new definition.
b. Employer
Opposition has expressed concern that the definition of
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"employer" in this bill would create vicarious
liability for the action of a subcontractor.
The definition of employer in this bill includes
"multiemployer" which is an employer who, with respect
to any other employee at the place of employment does
any of the following:
Employs the exposed employee.
Creates the hazard.
Is primarily responsible, by contract or through
practice, for safety and health conditions that
resulted in the hazard.
Is responsible for correcting the hazard.
The author points out that the above definition already
exists in OSHA regulations. It was a regulation that
the Federal Government required OSHA to implement to be
in compliance with minimum standards. The Federal
policy has recently been upheld as valid.
The definition in its wording does not create vicarious
liability, it instead requires that if you are
responsible for a hazard or the safety of the workplace
you are responsible regardless of who the employee is.
Thus, under existing statute, when a employer has
subcontractor employees working at the same site and
the employer is responsible for the safety at that
site, if a subcontractor is injured because of a hazard
created by the employer, the employer can not be cited.
This bill would allow such an employer to be cited.
SHOULD AN EMPLOYER WHO IS RESPONSIBLE FOR THE SAFETY OF
A WORKPLACE BE RESPONSIBLE FOR AN INJURY OR DEATH
REGARDLESS OF WHO THE EMPLOYEE IS?
SHOULD EXISTING REGULATIONS DEFINING EMPLOYER TO
INCLUDE MULTIEMPLOYER BE CODIFIED?
c. Substantial Probability
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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.
This bill adds the following to that definition: A
substantial probability of serious injury also shall
exist if any single serious injury has been caused by
the violation.
5. Other Provisions
a. Statute of limitations for complaints filed with
Labor Commissioner
This bill changes the current 30 days statute of
limitations for filing a complaint because of wrongful
discharge or other discrimination with the Labor
Commissioner to allow the complaint to be filed within
one year. According to the sponsors, this is
consistent with the time for filing of other types of
complaints, such as a discrimination complaint.
b. Admissibility of OSHA regulations and statutes
Existing law prohibits the admissibility of OSHA
regulations and statutes in personal injury or wrongful
death statute. This is contrary to the usual rule of
admissibility of statutes and regulations in court
proceedings. According to the proponents this rule of
inadmissibility was the result of a negotiation at the
time the OSHA statutes were originally enacted.
This bill provides that OSHA standards, statutes and
orders are admissible in proceedings against employers.
The opposition argues that this admissibility may make
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OSHA develop regulations based on litigation concerns
and not worker safety.
c. Investigation of complaints
Existing law provides that the Division of Occupational
Safety and Health must within a specified time frame
investigate complaints from an employee, the employee's
representative or an employer of an employee directly
involved in an unsafe place of employment.
This bill expands the definition of "employee
representative" to include "an attorney, health and
safety professional, union representative, family
member, or representative of a government agency."
The opposition is concerned about the expansion of this
definition for fear of meritless complaints which will
then have to be investigated.
The proponents wanted the expansion because sometimes
more serious complaints get put behind less serious
complaints because of the deadlines.
SHOULD THE DEFINITION OF EMPLOYMENT REPRESENTATIVE BE
EXPANDED? IF SO WOULD A MORE NARROW EXPANSION BE
APPROPRIATE?
d. Injunctions
Existing law provides that the jurisdiction for an
injunction sought by the Division of Occupational
Safety and Health is any place where the machine,
device, apparatus, equipment or employment is situated.
This bill provides that the place for jurisdiction is
where the employment or employee is situated.
Existing law allows the Division of Occupational Safety
and Health may seek an injunction against the use of a
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machine, device, apparatus, etc. if it constitutes a
serious menace to the lives or safety of persons. The
law provides that no bond is required.
This bill provides that the "no bond" provision also
applies to an injunction sought by the local district
attorney or the Attorney General. The bill does not
however explicitly grant the authority to the district
attorney or the Attorney General to seek the bond.
The Wine Institute is concerned about the expansion of
the "no bond" provision because "undue economic harm
could be inflicted on an employer of perishable farm
commodities if an error was made after the state or
local prosecutor was granted an immediate restraining
order."
Under existing law a judge looks at economic hardship
to the party when granting a preliminary injunction.
SHOULD This BILL CLEARLY SPECIFY THAT A JUDGE SHOULD
CONSIDER ECONOMIC HARDSHIP WHEN GRANTING A PRELIMINARY
INJUNCTION?
e. Abatement
This bill provides that when the Division of
Occupational Safety and Health determines an alleged
violation is serious and presents such a substantial
risk to the safety or health of employees that the
initiation of an appeal shall not suspend the running
of the period of abatement, it shall be noted on the
violation and then the a must be made for abatement by
the employer and gives an expedited hearing for that
motion.
6. Support and Opposition
Support: California District Attorneys Association;
Amalgamated Transit Union Members Local 192;
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American Federation of State, County, and Municipal
Employees; Building Construction and Trades
Council; California Applicants' Attorneys
Association; California Conference Board of the
Amalgamated Transit Union; California Conference of
Machinists; California Independent Public Employees
Legislative Council; California Optometry
Association; California Professional Firefighters;
California School Employees Association; California
State Association of Electrical Workers; California
Teamsters Public Affairs Council; Consumer
Attorneys of California; Engineers and Scientists
of California, Local 20 IFTPE; Hotel Employees and
Restaurant Employees International Union;
International Association of Bridge, Structural,
Ornamental and Reinforcing Iron Workers;
International Longshoreman's and Warehouseman's
Union Local 63, Marine Clerks; Johan Klehs; Pile
Drivers Local 34; PRIO Corporation; Plumbers,
Steamfitters and Refrigeration Fitters U.A, Local
Union 393; Region 8 States Council of the United
Food and Commercial Workers Union; Southern
California District Council International
Longshoremen's and Warehousemen's Union; United
Union of Roofers, Waterproofers and Allied Workers;
Western States Council of Sheet Metal Workers;
WORKSAFE!
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Opposition: California Chamber of Commerce; California
Manufacturers Association; California State
Association of Counties; Kern County Superintendent
of Schools; Fresno County Office of Education;
Accesio Products; American Electronics Association;
American Energy Operations, Inc.; 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.;
BreitBurn Energy Company; California Association of
Joint Powers Authorities; California Business
Properties Association; California Beer and
Beverage Distributors California Cast Metals
Association; California Drilling Fluids; California
Employment Law Council; California Farm Bureau
Federation; California Healthcare Association;
California Hotel and Motel Association; California
Grocers Association; California Industrial Hygiene
Council; California Lodging Industry Association;
California Mining Association; California Poultry
Industry Federation; California League of Food
Processors; California Poultry Industry Federation;
California Railroad Industry; California Restaurant
Association; California Retailers Association;
California School Boards Association; California
State Association of Counties; California Small
Business Association; California State Floral
Association; California Trucking Association; City
of Davis City Council; Dalton Trucking; Civil
Justice Association of California; Coalition for
Common Sense; Clorox Company; Commercial Transfer,
Inc.; Coalition for Common Sense; Commercial
Transfer, Inc.; Construction Employers'
Association; Construction Preliens & Paperwork;
Custom Plastics; Edward S. Cortez, Mayor of Pomona;
Ed Vance Company; Engineering Contractors'
Association; Engineering and Utility Contractors;
Fence Contractors Association; Flasher/Barricade
AB 1127 (Steinberg)
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Association; Food Express, Inc.; Frank C. Alegre
Trucking, Inc.; Fresno County Office of Education;
Kern County Superintendent of Schools; K.K.W.
Trucking Inc.; Gary Olson Trucking, Inc.; Greater
San Diego Chamber of Commerce; Helix Electric,
Inc.; Latin Business Association; League of
California Cities; Marin Builders Exchange;
Meehleis Modular Buildings, Inc.; Mike Conrotto
Trucking; Motion Picture Association of America;
Mountain Cascade Inc.; National Federation of
Independent Business; Pacific Linen Service; New
United Motor Manufacturing, Inc.; Printing
Industries of California; Ray Stone, Inc.; Reliable
Trucking, Inc.; Research Consultants and Advocates;
Roofing Contractors Association of California;
Ryder System, Inc.; Sacramento Builders' Exchange;
Small Manufacturers Association of California;
Sequoia Gas, Co.; South Bay Association Chambers of
Commerce; Swanson Farms; Textile Rental Services
Association of America; The Gate Guy; Tiger lines
Inc.; TRW Space and Electronics; Visalia Chamber of
Commerce; Warner-Lambert Co. Western Textile
Services Association; Western Growers Association;
Western States Petroleum Association; Wine
Institute; Woodwork Institute of California
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