BILL NUMBER: AB 3037 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Dymally
FEBRUARY 26, 2004
An act to amend Sections 6310, 6312, and 6401.7 of, to add
Sections 6312.1, 6312.2, 6312.5, 6401.8, 6401.9, 6401.10, and 6401.11
to, and to repeal Section 6311 of, the Labor Code, and to amend
Section 1103 of, and to add Chapter 1.5 (commencing with Section
1200) to Part 1 of Division 2 of, the Public Contract Code, relating
to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 3037, as introduced, Dymally. Employment: occupational safety
and health.
Under existing law, it is unlawful to discharge or discriminate
against an employee for making a complaint regarding employee safety
or health, instituting or testifying in any proceeding under his or
her rights, participating in an occupational health and safety
committee, or refusing to perform work in violation of any
occupational safety or health standard or safety order. Existing law
further authorizes any employee who believes that he or she has been
unlawfully discharged or otherwise discriminated against to file a
complaint with the Labor Commissioner, and the Labor Commissioner is
required to investigate those complaints.
This bill, instead, would make it an unlawful employment practice
for an employer to subject an employee to an adverse employment
action, as defined, because the employee filed a complaint relating
to employee safety or health, instituted or testified in a proceeding
under his or her rights, participated in an occupational health and
safety committee, or refused to perform unsafe work, as defined. The
bill would provide for the employee to file a complaint of adverse
employment action with the Division of Occupational Safety and Health
and would set forth the minimum procedures for filing,
investigating, and determining complaints of occupational safety and
health discrimination. The bill would require the division to
establish additional procedures and criteria for investigating and
determining complaints and to file an annual report with the
Legislature relating to employee safety and health grievances.
Under existing law, any employer who willfully refuses to rehire,
promote, or otherwise restore an employee who has been determined to
be eligible for rehiring or promotion, is guilty of a misdemeanor.
Because this bill would revise and expand the conditions under
which an employer may be guilty of a misdemeanor, the bill would
redefine this offense, thereby imposing a state-mandated local
program.
Under existing law, an employee unlawfully discharged or
discriminated against is entitled to reinstatement and reimbursement
for lost wages.
This bill would provide that the employee is entitled to
reinstatement, the recovery of a penalty at least 3 times the value
of the employee's lost benefits and wages, and reasonable attorney's
fees and costs.
Existing law requires every employer to establish an effective
injury prevention program, and specifically permits employer and
employee occupational safety and health committees to be included in
the employer's injury prevention program.
This bill would require the injury and illness prevention program
(IIPP) of an employer to include either a joint employer-employee
occupational safety and health committee or an employer safety
liaison, except as specified. The bill would require the Division of
Occupational Safety and Health to adopt regulations to implement
this new requirement on or before January 1, 2006, and to establish
minimum criteria regarding committee duties and selection of employee
representatives.
Existing law creates a presumption that an employer is in
substantial compliance with the communication requirement of the
employer's injury prevention program if the employer's occupational
safety and health committee conforms with specified criteria.
This bill would require the Division of Workers' Compensation to
establish criteria for a certificate of merit for employers with an
effective IIPP with an effective joint employer-employee occupational
safety and health committee. The certificate would entitle the
employer to additional incentives, including a 5% discount on the
employer's workers' compensation premium and a presumption that an
employer meets responsible bidding requirements for safety and
health.
The bill would require employers to submit certificate
applications under penalty of perjury. By creating a new crime, the
bill would impose a state-mandated local program.
The bill would impose related responsible bidder requirements for
public contracts, that would require demonstration of the
effectiveness of the bidder's IIPP. The bill would require the
Department of Industrial Relations to develop model guidelines for
contractual language for public entities to assure that the
successful bidder provides a safe and healthful work place.
Existing law requires every workers' compensation insurer to
conduct a review of the IIPP of each of its insureds, as specified,
to determine whether the insured has implemented all of the required
components of the IIPP, and evaluate their effectiveness.
This bill would additionally require insurers to conduct an
on-site review, as specified, and to provide training assistance to
certain employers. Insurers also would be required to develop and
implement a series of targeted prevention programs, as specified.
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. The Legislature finds and declares that workplace
deaths, injuries, and illnesses take a tremendous, tragic, costly,
and unnecessary toll in California. A significant means of reducing
the costs of workplace deaths, injuries, and illnesses--personal and
economic costs borne by the injured worker and workers' compensation
costs borne by the employer--is to reduce their incidence. This
requires a multi-faceted approach involving education of both workers
and employers as to their respective rights and duties,
encouragement to work cooperatively, and ultimately strong government
as well as private enforcement efforts. To strengthen this
multi-faceted approach, it is the intent of the Legislature to focus
on effective means to assure that workers and employers can, at the
workplace, solve problems quickly and cooperatively, without workers
fearing retaliation. The Legislature believes labor-management
health and safety cooperation, so long as it includes knowledgeable,
independent worker participation, will reduce workplace deaths,
injuries, and illnesses. The Legislature believes that employers who
have effective cooperative programs should be rewarded when, for
example, they bid on government contracts. It is also the intent of
the Legislature to assure that workers have effective and enforceable
rights to secure safe and healthful working conditions through
meaningful participation in the employer's injury and illness
prevention program and further that workers be protected against
reprisals for participation in occupational safety and health
matters, including, but not limited to, making complaints about
hazardous conditions and refusing to work in hazardous conditions.
The following rights and remedies shall be available and rigorously
enforced.
SEC. 2. Section 6310 of the Labor Code is amended to read:
6310. (a) No person shall discharge or in any manner
discriminate against any employee because the employee has done any
of the following It is an unlawful employment practice
for an employer to subject an employee to an adverse employment
action because any of the following has occurred :
(1) Made The employee filed, caused to be
filed, or made known his or her intention to file, any oral or
written complaint to the division, other governmental agencies having
statutory responsibility for or assisting the division with
reference to employee safety or health, his or her employer or
any agent of his or her employer , or his or her
representative. The complaint shall be in good faith about a
working condition or practice that creates a real and apparent hazard
or is likely to cause death or serious physical injury, or that the
employee reasonably believes to be unsafe or dangerous, whether or
not there exists an occupational safety and health standard or order
that is being violated. The complaint shall be with regard to one or
more conditions or practices affecting the employee, his or her
fellow employees, or the employees of another employer.
(2) Instituted The employee instituted
or caused to be instituted any proceeding under or relating to
his or her rights or has testified or is about to testify in the
proceeding or because of the exercise by the employee on behalf of
himself, herself, or others of any rights afforded him or her
pursuant to this division .
(3) Participated The employee participated
in an occupational health and safety committee
established pursuant to Section 6401.7 .
(4) The employee refused to perform unsafe work, as defined in
subdivision (d), the performance of which may violate this code,
including Section 6400, any occupational safety or health standard,
or any safety order of the division.
(b) Any employee who is discharged, threatened with
discharge, demoted, suspended, or in any other manner discriminated
against in the terms and conditions of employment by his or her
employer because the employee has made a bona fide oral or written
complaint to the division, other governmental agencies having
statutory responsibility for or assisting the division with reference
to employee safety or health, his or her employer, or his or her
representative, of unsafe working conditions, or work practices, in
his or her employment or place of employment, or has participated in
an employer-employee occupational health and safety committee, shall
be entitled to reinstatement and reimbursement for lost wages and
work benefits caused by the acts of the employer. Any
An employer who violates subdivision (a) is liable for the
following:
(1) Twenty-five thousand dollars ($25,000) or three times the
value of the employee's lost benefits and wages, whichever is
greater, if the employee has been discharged.
(2) Five thousand dollars ($5,000) or three times the value of the
employee's lost benefits and wages, whichever is greater, if the
employee has suffered an adverse employment action or actions other
than discharge.
(3) Reinstatement of the employee.
(4) Reasonable attorney's fees and costs.
(c) For purposes of this chapter, "adverse employment action"
means a discharge, demotion, or suspension of an employee, or an
action that threatens to discharge or in any other manner
discriminates against an employee in a term or condition of
employment.
(d) For purposes of this section, "refused to perform unsafe work"
means a refusal to perform work under all of the following
conditions:
(1) The employee complained in good faith about a working
condition or practice that creates a real and apparent hazard or is
likely to cause death or serious physical injury, or that the
employee reasonably believes to be unsafe or dangerous, whether or
not there existed an occupational safety and health standard or order
that was being violated. The complaint shall be with regard to one
or more conditions or practices affecting the employee, his or her
fellow employees, or the employees of another employer.
(2) As soon as practicable, and immediately upon request, the
employee reported his or her refusal and reasons to his or her
immediate supervisor, foreperson, or any person in authority.
(3) The employee performed alternative work if requested by the
employer.
(e) Any employer who willfully refuses to rehire, promote,
or otherwise restore an employee or former employee who has been
determined to be eligible for rehiring or ,
promotion , or restoration by a grievance procedure,
arbitration, or hearing authorized by law, is guilty of a
misdemeanor.
SEC. 3. Section 6311 of the Labor Code is repealed.
6311. No employee shall be laid off or discharged for refusing to
perform work in the performance of which this code, including
Section 6400, any occupational safety or health standard or any
safety order of the division or standards board will be violated,
where the violation would create a real and apparent hazard to the
employee or his or her fellow employees. Any employee who is laid
off or discharged in violation of this section or is otherwise not
paid because he or she refused to perform work in the performance of
which this code, any occupational safety or health standard or any
safety order of the division or standards board will be violated and
where the violation would create a real and apparent hazard to the
employee or his or her fellow employees shall have a right of action
for wages for the time the employee is without work as a result of
the layoff or discharge.
SEC. 4. Section 6312 of the Labor Code is amended to read:
6312. Any employee who believes that he or she has been
discharged or otherwise discriminated against
subjected to an adverse employment action by any person in
violation of Section 6310 or 6311 may file a
complaint with the Labor Commissioner
division pursuant to Section 98.7
6312.2 .
SEC. 5. Section 6312.1 is added to the Labor Code, to read:
6312.1. (a) Within 20 days of receipt of a complaint of an
adverse employment action in violation of Section 6310, the chief of
the division or his or her designee shall complete a preliminary
review to determine whether to proceed with a full investigation.
(b) No later than June 30, 2005, and before implementing this
section for preliminary review, the division shall develop evaluation
criteria for the preliminary review. The criteria, as well as data
and explanatory information regarding the matters to which these
criteria are applied, shall be included in the first annual and in
subsequent annual reports to the Legislature pursuant to Section
6312.5. The decision of the division whether or not to pursue a full
investigation shall be without prejudice to the right of a
complainant to pursue or obtain any other legal remedy he or she may
have and is not intended to, and does not, affect existing rights or
remedies available to a complainant.
(c) This section shall remain in effect only until January 1, 2007,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2007, deletes or extends that date.
SEC. 6. Section 6312.2 is added to the Labor Code, to read:
6312.2. (a) Any person who believes that he or she has been
discharged or otherwise discriminated against in violation of Section
6310 may file a complaint with the division within six months after
the occurrence of the violation. The six-month period may be
extended by the chief of the division for good cause.
(b) The chief of the division or his or her designee shall assign
the complaint to an occupational safety and health discrimination
complaint investigator who shall prepare and submit a report to the
chief based on an investigation of the complaint. The chief may
designate his or her chief deputy, a regional manager, or division
counsel to receive and review the reports.
(c) No later than June 30, 2005, the chief shall establish
procedures for the investigation of occupational safety and health
discrimination complaints.
(d) Upon receipt of a complaint, the division shall provide to
each complainant both of the following:
(1) A summary of the procedures for processing the complaint.
(2) Notice that the complainant may file a separate, concurrent
complaint with the United States Department of Labor within 30 days
after the occurrence of the violation.
(e) The procedures established pursuant to subdivision (c) shall,
at a minimum, comply with all of the following:
(1) The division shall provide the complainant and respondent
written notice of whether or not it shall proceed with that full
investigation and shall commence a full investigation within 20 days
of the date of receipt of the complaint.
(A) If the complainant failed to provide sufficient information to
process the complaint, the division shall notify the complainant as
soon as possible and instruct the complainant regarding what
additional specific information is needed to process the complaint.
(B) Upon commencement of a full investigation, a written notice
shall inform the complainant and respondent of the nature of the
complaint, their respective rights and responsibilities, and all
procedures involved in resolving the complaint, as established
pursuant to subdivision (c).
(2) The division shall issue subpoenas, upon a showing of good
cause, for additional evidence in any form or to compel testimony
from a witness.
(3) The investigation shall be conducted by an inspector,
investigator, or attorney designated by the division, who shall
obtain and consider, at a minimum, all of the following information:
(A) Written statements and transcripts of oral statements
submitted by the complainant in response to questioning by the
division, which shall include all the elements of a prima facie case.
(B) Written statements submitted by the respondent.
(C) Written statements or transcripts of oral statements submitted
by the complainant in response to questioning by the division, which
shall include questioning the complainant regarding evidence that
might tend to rebut statements offered by the respondent.
(D) Documents subpoenaed from the respondent or any other relevant
source to support or rebut the evidence of the complainant or the
respondent.
(E) Written statements or transcripts of oral statements given by
witnesses who have information concerning the alleged violation. The
identity of a witness 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.
(4) At any time before the chief, or his or her designee, issues
his or her report or decision, he or she may hold an investigative
hearing if, in his or her opinion, a hearing is necessary. All
formal declarations, documentary evidence, and any investigative
reports that have previously been filed shall be made a part of the
record. The complainant and the respondent shall have the
opportunity to review the record. The complainant and the respondent
shall have the right to be present, to present further evidence, and
to present and cross-examine witnesses. The division shall issue,
serve, and enforce subpoenas on behalf of itself, the complainant, or
the respondent to compel the attendance of witnesses or to produce
evidence at the hearing.
(5) The person conducting the investigation shall submit to the
chief or his or her designee, a written investigation report
summarizing the findings of the investigation and all the information
obtained pursuant to paragraphs (1) to (4), inclusive. The
investigation report shall include recommended findings of fact and
conclusions of law, and shall also include attachments of all
statements and documents obtained in the investigation.
(6) The chief shall notify the complainant and respondent of his
or her determination not later than 60 days after the filing of the
complaint. The notice shall inform the parties of their right to
request a copy of all reports, attachments, statements, documents,
and hearing transcripts.
(f) (1) If the chief determines a violation has occurred, he or
she shall promptly notify the complainant and respondent, direct the
respondent to cease and desist from the violation, and take any
action deemed necessary to remedy the violation. These actions may
include, but are not limited to, where appropriate, rehiring or
reinstatement, reimbursement of lost wages and benefits and interest
thereon, payment of reasonable attorney's fees associated with any
hearing held by the chief in investigating the complaint, the posting
of notices to employees, and the specific penalties set forth in
subdivision (b) of Section 6310 for matters charging a violation of
that section.
(2) If the respondent does not comply with the order within 10
days following notification of the chief's determination, the chief
shall bring an action promptly against the respondent in a court of
competent jurisdiction. The chief shall petition the court for
appropriate temporary relief or a restraining order unless he or she
determines good cause exists for not doing so. If the chief prevails
in this action, the court shall award reasonable attorney's fees,
court costs, and investigative costs to the chief. Fees and costs
that are awarded to the chief shall be retained by the chief and used
to fund investigations of complaints filed pursuant to Section 6310.
(3) If the chief fails to bring an action in court promptly, the
complainant may bring an action against the chief in any appropriate
court for a writ of mandate to compel the chief 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 law.
(4) Regardless of any delay in bringing an action in court, the
chief shall not be divested of jurisdiction.
(5) In any 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
benefits and interest thereon, the specific penalties set forth in
subdivision (b) of Section 6310 for matters charging a violation of
that section, and any other compensation or equitable relief as is
appropriate under the circumstances of the case.
(g) (1) If the chief determines that no violation has occurred, he
or she shall notify the complainant and respondent and dismiss the
complaint.
(2) The chief may direct the complainant to pay reasonable
attorney's fees associated with any hearing held by the chief if the
chief finds the complaint was frivolous, unreasonable, groundless,
and brought in bad faith.
(3) The complainant may, after notification of the chief'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 benefits and interest
thereon, the specific penalties set forth in subdivision (b) of
Section 6310 for matters charging a violation of that section, and
other compensation or equitable relief as is appropriate under the
circumstances of the case.
(4) When dismissing a complaint, the chief 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 chief, and
in the case of an alleged violation of Section 6310, to file a
complaint against the state program with the United States Department
of Labor.
(5) The timely filing of a complaint against the state program
with the United States Department of Labor shall stay the chief's
dismissal of the division complaint until the United States Secretary
of Labor makes a determination regarding the alleged violation.
Within 15 days of receipt of that determination, the chief shall
notify the parties whether he or she will reopen the complaint filed
with the division or whether he or she will reaffirm the dismissal.
(h) The chief shall notify the complainant and respondent of his
or her determination under paragraph (1) of subdivision (f) or
paragraph (1) of subdivision (g), not later than 60 days after the
filing of the complaint. Determinations by the chief under
subdivision (f) or (g) may be appealed by the complainant or
respondent to the Director of Industrial Relations within 10 days
following notification of the chief's determination. The appeal
shall set forth specifically and in full detail the grounds upon
which the appealing party considers the chief'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 chief's
determination. The director's determination shall supersede the
determination of the chief. The director shall notify the
complainant and respondent of his or her determination within 10 days
of receipt of the appeal.
(i) The rights and remedies provided by this section do not
preclude an employee from pursuing any other rights and remedies
under any other law. Nothing in this section is intended to, nor does
it, affect existing rights or remedies available to a complainant.
SEC. 7. Section 6312.5 is added to the Labor Code, to read:
6312.5. The division shall file an annual report with the
Legislature by December 1 of each year. This report shall provide an
accounting of all matters involving Sections 6310 to 6312, inclusive,
and shall report statistics so as to coincide with the federal
Occupational Safety and Health Administration fiscal year. The
report shall include, but not be limited to, information regarding
cases filed, investigated, dismissed, settled, heard, or appealed,
the caseload of the division, the timeliness of dispositions, and
other information the Legislature may request in advance of the
report. The Legislature shall direct the division as to any
additional items to include in the report by October 1 of the year
the report is due. The Legislature may hold a hearing on the report
and obtain additional information after the report is submitted.
SEC. 8. Section 6401.7 of the Labor Code is amended to read:
6401.7. (a) Every employer shall establish, implement, and
maintain an effective injury and illness prevention
program. The program shall be written, except as provided in
subdivision (e), and shall include, but not be limited to, all
of the following elements:
(1) Identification of the person or persons responsible for
implementing the program.
(2) The employer's system for identifying and evaluating workplace
hazards, including scheduled periodic inspections to identify unsafe
conditions and work practices.
(3) The employer's methods and procedures for correcting unsafe or
unhealthy conditions and work practices in a timely manner.
(4) An occupational health and safety training program designed to
instruct employees in general safe and healthy work practices and to
provide specific instruction with respect to hazards specific to
each employee's job assignment.
(5) The employer's system for communicating with employees on
occupational health and safety matters, including provisions designed
to encourage employees to inform the employer of hazards at the
worksite without fear of reprisal.
(6) The employer's system for ensuring that employees comply with
safe and healthy work practices, which may include disciplinary
action.
(b) The employer shall correct unsafe and unhealthy conditions and
work practices in a timely manner based on the severity of the
hazard.
(c) The employer shall train all employees when the training
program is first established, all new employees, and all employees
given a new job assignment, and shall train employees whenever new
substances, processes, procedures, or equipment are introduced to the
workplace and represent a new hazard, and whenever the employer
receives notification of a new or previously unrecognized hazard.
Beginning January 1, 1994, an employer in the construction industry
who is required to be licensed under Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code may
use employee training provided to the employer's employees under a
construction industry occupational safety and health training program
approved by the division to comply with the requirements of
subdivision (a) relating to employee training, and shall only be
required to provide training on hazards specific to an employee's job
duties.
(d) The employer shall keep appropriate records of steps taken to
implement and maintain the program. Beginning January 1, 1994, an
employer in the construction industry who is required to be licensed
under Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code may use records relating to employee
training provided to the employer in connection with an occupational
safety and health training program approved by the division to comply
with the requirements of this subdivision, and shall only be
required to keep records of those steps taken to implement and
maintain the program with respect to hazards specific to an employee'
s job duties.
(e) (1) The standards board shall adopt a standard setting forth
the employer's duties under this section, on or before January 1,
1991, consistent with the requirements specified in subdivisions (a),
(b), (c), and (d). The standards board, in adopting the standard,
shall include substantial compliance criteria for use in evaluating
an employer's injury and illness prevention program. The
board may adopt less stringent criteria for employers with few
employees and for employers in industries with insignificant
occupational safety or health hazards.
(2) Notwithstanding subdivision (a), for employers with fewer than
20 employees who are in industries that are not on a designated list
of high hazard industries and who have a workers' compensation
experience modification rate of 1.1 or less, and for any employers
with fewer than 20 employees who are in industries that are on a
designated list of low hazard industries, the board shall adopt a
standard setting forth the employer's duties under this section
consistent with the requirements specified in subdivisions (a), (b),
and (c), except that the standard shall only require written
documentation to the extent of documenting the person or persons
responsible for implementing the program pursuant to paragraph (1) of
subdivision (a), keeping a record of periodic inspections pursuant
to paragraph (2) of subdivision (a), and keeping a record of employee
training pursuant to paragraph (4) of subdivision (a). To any extent
beyond the specifications of this subdivision, the standard shall
not require the employer to keep the records specified in subdivision
(d).
(3) The division shall establish a list of high hazard industries
using the methods prescribed in Section 6314.1 for identifying and
targeting employers in high hazard industries. For purposes of this
subdivision, the "designated list of high hazard industries" shall be
the list established pursuant to this paragraph.
For the purpose of implementing this subdivision, the Department
of Industrial Relations shall periodically review, and as necessary
revise, the list.
(4) For the purpose of implementing this subdivision, the
Department of Industrial Relations shall also establish a list of low
hazard industries, and shall periodically review, and as
necessary revise, that list.
(f) The standard adopted pursuant to subdivision (e)
shall specifically permit employer and employee occupational safety
and health committees to be included in the employer's injury
prevention program. The board shall establish criteria for use in
evaluating employer and employee occupational safety and health
committees. The criteria shall include minimum duties, including the
following:
(1) Review of the employer's (A) periodic, scheduled worksite
inspections, (B) investigation of causes of incidents resulting in
injury, illness, or exposure to hazardous substances, and (C)
investigation of any alleged hazardous condition brought to the
attention of any committee member. When determined necessary by the
committee, the committee may conduct its own inspections and
investigations.
(2) Upon request from the division, verification of abatement
action taken by the employer as specified in division citations.
If an employer's occupational safety and health committee meets
the criteria established by the board, it shall be presumed to be in
substantial compliance with paragraph (5) of subdivision (a).
(g) The division shall adopt regulations specifying the procedures
for selecting employee representatives for employer-employee
occupational health and safety committees when these procedures are
not specified in an applicable collective bargaining agreement. No
employee or employee organization shall be held liable for any act or
omission in connection with a health and safety committee.
(h) The employer's injury and illness
prevention program, as required by this section, shall cover all of
the employer's employees and all other workers who the employer
controls or directs and directly supervises on the job to
the extent these workers are exposed to worksite and job assignment
specific hazards , in conformity with subdivision (b)
of Section 6400 . Nothing in this subdivision shall
affect diminish the obligations of a contractor
or other employer which that controls
or directs and directly supervises its own
employees on the job.
(i)
(g) Where a contractor supplies its employee to a state
agency employer on a temporary basis, the state agency employer may
assess a fee upon the contractor to reimburse the state agency for
the additional costs, if any, of including the contract employee
within the state agency's injury and illness prevention
program.
(j)
(h) (1) The division shall prepare a Model Injury and
Illness Prevention Program for Non-High-Hazard Employment, and shall
make copies of the model program prepared pursuant to this
subdivision available to employers, upon request, for posting in the
workplace. An employer who adopts and implements the model program
prepared by the division pursuant to this paragraph in good faith
shall not be assessed a civil penalty for the first citation for a
violation of this section issued after the employer's adoption and
implementation of the model program.
(2) For purposes of this subdivision, the division shall establish
a list of non-high-hazard industries in California, that may include
the industries that, pursuant to Section 14316 of Title 8 of the
California Code of Regulations, are not currently required to keep
records of occupational injuries and illnesses under Article 2
(commencing with Section 14301) of Subchapter 1 of Chapter 7 of
Division 1 of Title 8 of the California Code of Regulations. These
industries, identified by their Standard Industrial Classification
Codes, as published by the United States Office of Management and
Budget in the Manual of Standard Industrial Classification Codes,
1987 Edition, are apparel and accessory stores (Code 56), eating and
drinking places (Code 58), miscellaneous retail (Code 59), finance,
insurance, and real estate (Codes 60-67), personal services (Code
72), business services (Code 73), motion pictures (Code 78) except
motion picture production and allied services (Code 781), legal
services (Code 81), educational services (Code 82), social services
(Code 83), museums, art galleries, and botanical and zoological
gardens (Code 84), membership organizations (Code 86), engineering,
accounting, research, management, and related services (Code 87),
private households (Code 88), and miscellaneous services (Code 89).
To further identify industries that may be included on the list, the
division shall also consider data from a rating organization, as
defined in Section 11750.1 of the Insurance Code, the Division of
Labor Statistics and Research, including the logs of occupational
injuries and illnesses maintained by employers on Form CAL/OSHA No.
200, or its equivalent, as required by Section 14301 of Title 8 of
the California Code of Regulations, and all other appropriate
information. The list shall be established by June 30, 1994, and
shall be reviewed, and as necessary revised, biennially.
(3) The division shall prepare a Model Injury and Illness
Prevention Program for Employers in Industries with Intermittent
Employment, and shall determine which industries have historically
utilized seasonal or intermittent employees. An employer in an
industry determined by the division to have historically utilized
seasonal or intermittent employees shall be deemed to have complied
with the requirements of subdivision (a) with respect to a written
injury and illness prevention program if the employer
adopts the model program prepared by the division pursuant to this
paragraph and complies with any instructions relating thereto.
(k)
(i) With respect to any county, city, city and county, or
district, or any public or quasi-public corporation or public agency
therein, including any public entity, other than a state agency, that
is a member of, or created by, a joint powers agreement, subdivision
(d) shall not apply.
(l) Every workers' compensation insurer shall conduct a review,
including a written report as specified below, of the injury and
illness prevention program (IIPP) of each of its insureds within four
months of the commencement of the initial insurance policy term.
The review shall determine whether the insured has implemented all of
the required components of the IIPP, and evaluate their
effectiveness. The training component of the IIPP shall be evaluated
to determine whether training is provided to line employees,
supervisors, and upper level management, and effectively imparts the
information and skills each of these groups needs to ensure that all
of the insured's specific health and safety issues are fully
addressed by the insured. The reviewer shall prepare a detailed
written report specifying the findings of the review and all
recommended changes deemed necessary to make the IIPP effective. The
reviewer shall be an independent licensed California professional
engineer, certified safety professional, or a certified industrial
hygienist.
SEC. 9. Section 6401.8 is added to the Labor Code, to read:
6401.8. (a) On or before January 1, 2006, the division shall
adopt regulations to require joint employer and employee occupational
safety and health committees or safety liaisons to be included in
the employer's injury and illness prevention program, except as
provided in subdivision (b). The division shall establish minimum
criteria for employer and employee occupational safety and health
committees or safety liaisons, including both of the following:
(1) Employers with 50 or more employees shall have a joint
employer-employee occupational safety and health committee.
(2) Employers with fewer than 50 employees shall have at least an
employee and employer safety liaison.
(b) (1) Subdivision (a) shall not apply to the following:
(A) Any employer with an experience modification rate of less than
1.1 in an industry that is either on the list of non-high-hazard
industries in California, as established pursuant to paragraph (2) of
subdivision (h) of Section 6401.7, or on the low hazard industry
list, as established pursuant to paragraph (4) of subdivision (e) of
Section 6401.7.
(B) Any employer with fewer than 10 employees unless either of the
following applies:
(i) The employer's workers' compensation premium classification
assigned to the greatest portion of the payroll for the employer is a
premium rate in the top 25 percent of all premium rates for all
classes pursuant to rules of the Insurance Commissioner.
(ii) The employer is on a designated list of high hazard
industries established pursuant to paragraph (3) of subdivision (e)
of Section 6401.7.
(2) Paragraph (1) shall not apply to any employer if, in the last
two years from the date of the most recent incident, the employer has
had any workplace death or any serious injury, illness, or accident.
"Serious injury, illness, or accident" means the employee was
admitted to the hospital, suffered the loss of any member of the
body, suffered any serious degree of permanent disfigurement, or
required surgery for acute trauma.
(c) Employers exempted pursuant to subdivision (b) may institute a
joint employer-employee occupational safety and health committee or
safety liaison in order to apply for a certificate of merit pursuant
to Section 6401.9.
(d) (1) In determining employment levels under subdivisions (a)
and (b), the employer shall count all permanent, contract, temporary,
and seasonal workers under the employer's direction and control, and
shall base the number on peak employment.
(2) Temporary services employers and labor contractors shall
determine employment levels based upon the total number of workers
over which the employer or contractor exercises direction and
control.
(e) For agriculture, the agricultural employer shall establish the
committee and include representatives of labor contractors when
those subcontractors are active at the premises.
(f) For multiemployer nonpermanent workplaces, the general or
prime or principal contractor shall establish the committee and
include representatives of each subcontractor when those
subcontractors are active at the premises.
(g) For multiemployer permanent workplaces, the facility shall
establish the committee and include representatives of each
subcontractor when those subcontractors are active at the premises.
(h) The duties of the joint employer-employee occupational safety
and health committee or safety liaison shall be addressed by the
minimum criteria established pursuant to subdivision (a), and shall
include, among other things, all of the following:
(1) Review of the employer's injury and illness prevention
program.
(2) Participation in and review of any periodic, scheduled
worksite inspections, including evaluating the effectiveness of new
safety equipment and health and safety procedures. For multiemployer
nonpermanent workplaces, the committee or liaison shall review the
work to be done in the next period for all trades and crafts, the
associated safety and health hazards that cross craft lines, and may
make recommendations to all employers involved.
(3) Participation in and review of any investigation of causes of
incidents involving near-misses or death, injury, illness, or
exposure to hazardous substances.
(4) Participation in and review of any investigation of any
alleged hazardous condition or complaints.
(5) Participation in follow-up, abatement, and reporting back to
complainants regarding the complaints and, upon the request of the
division, regarding citations issued by the division.
(6) Development of a system for encouraging employees to bring
complaints or problems to the attention of the committee or team,
including anonymous complaints.
(7) Additional inspections and investigations by the committee or
liaison, when determined necessary by the committee or liaison.
(8) Recommendations to the employer regarding corrective actions
to be implemented within a specified time period. If a
recommendation is not implemented, the employer shall provide a
written explanation.
(9) Quarterly meetings if the employer is on the low hazard list,
monthly meetings if the employer is on the high hazard list or has an
experience modification rate of greater than 1.25, or weekly
meetings for multiemployer nonpermanent workplaces.
(10) A written agenda for each meeting, accurate and thorough
committee meeting minutes, and documentation of all other activities.
(11) Authority to stop an activity if a hazard that constitutes an
imminent danger to life or health is believed to exist. The
committee or liaison may also recommend to the employer that work
stop under other appropriate circumstances. If a recommendation is
not followed, the employer shall provide a written explanation.
(i) The structure of the joint employer-employee occupational
safety and health committee or safety liaison shall be addressed by
the minimum criteria established pursuant to subdivision (a), and
shall include, among other things, all of the following:
(1) An equal number of employer and employee representatives. The
employer and employees may agree to a greater number of employee
representatives.
(2) At least two employee and two management members for the first
50 employees, and at least one additional employee and one
additional management member for each subsequent 50 employees. The
employer and employees may agree to a maximum of 20 members or more
in workplaces where over 20 members would be required pursuant to
this paragraph.
(3) Reasonable efforts to ensure representation of various shifts,
trades and crafts, unions, and work activities.
(4) Majority vote on all recommendations to the employer.
(5) Annual rotation of the chair between labor and management.
(j) The committee or liaison member-selection process shall be
addressed by the minimum criteria established pursuant to subdivision
(a), and shall include, among other things, all of the following:
(1) The employer shall designate management representatives and
direct their activities. The responsible person identified pursuant
to paragraph (1) of subdivision (a) of Section 6401.7 shall be among
the management representatives.
(2) If there is a collective bargaining agreement, the employee
representatives shall be selected according to internal union
procedures. If there are multiple unions at the same workplace, each
union shall be entitled to at least one representative, unless the
unions decide among themselves to allocate representation in another
manner. If there are union and nonunion workers at the same
workplace, the union representative shall serve as representative for
all the employees.
(3) If there is no union representative, all of the following
shall apply:
(A) The employee representatives shall be nonsupervisory employees
selected randomly from among volunteers, or chosen by secret ballot
in an election supervised by the State Mediation and Conciliation
Service according to its procedures.
(B) If possible, at least one-half of the employee members of the
committee or liaison shall have been employed at least 24 months with
the present employer.
(C) The terms of employee representatives shall be three years,
and an employee representative may be reelected or serve again if
randomly chosen from among all volunteers.
(D) The terms of employee representatives shall be staggered or
alternated.
(k) All committee or liaison members shall be trained regarding
the basics of occupational safety and health and effective adult
learning methods, as follows:
(1) Each member shall initially receive a minimum of 32 hours of
health and safety training to help them become effective liaison or
committee members. The content of this training shall include all of
the following:
(A) Hazard identification and control.
(B) Incident investigation techniques.
(C) Principles of effective worker training and education.
(D) Mechanics of committee operations, including committee rights
and duties.
(E) Workers' rights with respect to occupational safety and
health.
(F) An overview of this standard and other relevant standards.
(2) Each member shall receive a minimum of eight hours of
refresher health and safety training every three years.
(3) Each member shall be permitted to take educational leave for a
period of two normal working days, up to a maximum of 16 hours per
year, which includes the required eight hours of refresher training
every three years, for the purposes of attending workplace safety and
health training seminars, programs, or courses of instruction.
(4) Training shall be provided by the Worker Occupational Safety
and Health Training and Education Program (WOSHTEP), the division, a
union, or an approved trainer. The division shall approve all
training providers and curriculum and may further define training
requirements. The training shall be provided at employer expense,
without loss of pay or other benefits, and during work hours.
Refresher training shall be tailored to meet the needs of specific
industries, occupations, or hazards, and shall include new laws and
regulations. Upon satisfactory completion of any training program,
each member shall receive a certificate of completion indicating the
date and type of program.
(l) Each member shall be compensated with his or her regular wages
and benefits while attending any safety and health meeting, doing
related safety and health work, or receiving safety and health
training.
(m) Complete documentation of the activities of the committee or
liaison shall be included with the employer's injury and illness
prevention program and made available for inspection and copying by
the division or any other government agency, upon request, and by
employees or their representatives at reasonable times and in a
reasonable manner. Medical or other personal information regarding a
worker shall be available only to government agencies authorized by
law to obtain that information and other authorized requesters with
the permission of the affected employee.
(n) The names of all committee or liaison members shall be
permanently and prominently posted. The committee's agenda,
outstanding action items, and proposed and actual resolutions of
health and safety concerns, shall be posted until 30 days after the
item has been resolved.
(o) No committee or liaison member shall be laid off during his or
her tenure or within one year of the end of tenure unless he or she
is the last person in his or her class or category on the job, except
as otherwise provided by a collective bargaining agreement.
(p) Upon application, the division may approve any safety
committee that is innovative or different in form or function, if the
committee meets the intent of this section and the regulations
promulgated by the division.
(q) The committee or liaison shall act in an advisory capacity to
the employer, and individual employee participants do not assume the
employer's exclusive responsibility for providing a safe and
healthful workplace or any related liability. No employee or
employee organization shall be held liable for any act or omission in
connection with the activities of a committee or liaison.
(r) The division, in consultation with the State Mediation and
Conciliation Service and other affected parties, shall adopt
regulations specifying the procedures for selecting employee
representatives for joint employer-employee occupational safety and
health committees or safety liaisons if there is no collective
bargaining agreement between the employer and any union representing
the employees.
SEC. 10. Section 6401.9 is added to the Labor Code, to read:
6401.9. (a) On or before January 1, 2006, the Division of Workers'
Compensation, in cooperation with the Division of Occupational
Safety and Health and the Department of Insurance, shall establish
criteria for a certificate of merit based on whether an employer has
an effective injury and illness prevention program (IIPP), including
an effective joint employer-employee occupational safety and health
committee or safety liaison.
(b) An eligible employer may apply for a certificate of merit that
shall entitle the employer to a 5-percent discount from the
insurance carrier or group self-insurance fund beyond any experience
modification rate or other discount standard to the workers'
compensation insurance industry. An eligible employer may also use
the certificate of merit to meet one of the qualifications for a
responsible bidder pursuant to Sections 1200 and 1201 of the Public
Contract Code.
(c) The criteria for the certificate of merit shall include, at a
minimum, all of the following:
(1) No employer shall be eligible for a certificate unless the
employer has in place an effective IIPP and an effective joint
employer-employee occupational safety and health committee or safety
liaison.
(2) If an employer is not required to have a committee or liaison,
he or she may voluntarily implement a committee or liaison in order
to take advantage of the incentives described in subdivision (b).
(3) The employer shall not be eligible to apply for a certificate
of merit until the committee or liaison has been operating
effectively for at least six months.
(d) The employer shall submit an application, under penalty of
perjury, for an initial certificate or biannual renewal certificate
to the Division of Workers' Compensation. The application form shall
be accompanied by documentation as determined by the Division of
Workers' Compensation in cooperation with the Division of
Occupational Safety and Health and the Department of Insurance.
(e) The criteria for the certificate of merit shall conform with,
among other criteria to be determined by the Division of Workers'
Compensation in cooperation with the Division of Occupational Safety
and Health and the Department of Insurance, the size of the employer,
whether the employer is on a high or low hazard industry list, the
lost-workday case incident rate, and the employer's experience
modification rate, if any.
SEC. 11. Section 6401.10 is added to the Labor Code, to read:
6401.10. (a) Every workers' compensation insurer shall conduct a
review, including a written report as specified in subdivision (g),
of the injury and illness prevention program (IIPP) of each of its
insureds at the beginning of the second year of insurance for an
employer who has been with the insurance company for one preceding
year. The review shall determine whether the insured has implemented
all of the required components of the IIPP, and evaluate their
effectiveness.
(b) Additionally, the insurer shall conduct an on-site review at
the beginning of the third year for an employer who has been with the
insurance company for the two preceding years. The on-site review
shall include a hazard evaluation and specify not only the general
and specific hazards, but also shall do all of the following:
(1) Identify conditions that are not in compliance and recommend a
timetable for compliance.
(2) Identify areas that need improvement and recommend a timetable
for improvement.
(3) Make specific recommendations to achieve compliance and
improvement.
(4) Identify what assistance the insurer will provide to the
insured to bring the insured into compliance or to improve the
insured's IIPP.
(c) The training component of the IIPP shall be evaluated to
determine whether training is provided to line employees,
supervisors, and upper level management, and effectively imparts the
information and skills each of these groups needs to ensure that all
of the insured's specific health and safety issues are fully
addressed by the insured.
(d) If the insured and insurer have signed at least a three-year
contract, and upon request, any insured who is required to or who has
elected to implement a joint employer-employee occupational safety
and health committee or safety liaison, shall receive assistance from
his or her insurer in training the committee members.
(e) The insurer shall communicate annually with the insured in
order to offer assistance to the insured to improve the effectiveness
of the insured's IIPP and to inform the insured of the services of
the division's consultation service.
(f) Upon the request of the insured, if the insured and insurer
have signed at least a three-year contract, and the insured's
experience modification rate, if any, is greater than 1.4, the
insurer shall conduct an on-site review annually with the insured to
improve the effectiveness of the insured's IIPP.
(g) The reviewer shall prepare a detailed written report
specifying the findings of the initial and all subsequent reviews and
all recommended changes deemed necessary to make the IIPP effective.
(h) The reviewer shall be an independent licensed California
professional engineer, certified safety professional, certified
industrial hygienist, or a safety and health representative with the
insurance carrier who has three years' experience as a safety and
health representative.
SEC. 12. Section 6401.11 is added to the Labor Code, to read:
6401.11. All insurers, individually or through an association of
which the insurer is a member, shall, for high-frequency injuries in
various industries, develop and implement a series of targeted
prevention programs, including feasible interventions, to assist
employers. These programs shall be made available to all insureds.
In order to select the targeted prevention programs, the insurer or
an association in which the insurer is a member, shall annually
determine the top four high-frequency injuries in various industries
for the three previous years. These findings, as well as the
analysis that provides the basis for the findings, shall be provided
to the division and made available to the public.
SEC. 13. Section 1103 of the Public Contract Code is amended to
read:
1103. "Responsible bidder," as used in this part, means a bidder
who has demonstrated the attribute of trustworthiness, as well as
quality, fitness, capacity, and experience to satisfactorily perform
the public works contract , in compliance with Chapter 1.5
(commencing with Section 1200) .
The Legislature finds and declares that this section is
declaratory of existing law.
SEC. 14. Chapter 1.5 (commencing with Section 1200) is added to
Part 1 of Division 2 of the Public Contract Code, to read:
CHAPTER 1.5 BIDDER INJURY AND ILLNESS PREVENTION PROGRAM
1200. A public entity subject to this code shall require bidders
to be responsible with respect to worker occupational safety and
health. To that end, the bidder, or its component parts if the
bidder is a joint venture, shall be required to submit information as
set forth in subdivision (a) of Section 1201 regarding the
effectiveness of its injury and illness prevention program (IIPP) for
a period of at least four years, or for whatever period less than
four years the bidder has been in business, prior to the date of bid,
in a form specified by the public entity. A certificate of merit
issued pursuant to Section 6401.9 of the Labor Code shall demonstrate
presumptively that the employer has an effective IIPP and may be
submitted in lieu of the information required by subdivision (a) of
Section 1201. The certificate of merit shall also satisfy any
requirements for prequalification that the entity may establish.
1201. (a) A public entity subject to this code shall require that
each prospective bidder for a contract that does not have a
certificate of merit issued pursuant to Section 6401.9 of the Labor
Code, submit the following information in order for the entity to
evaluate the effectiveness of the bidder's injury and illness
prevention program:
(1) A copy of the prospective bidder's written injury and illness
prevention program.
(2) The bidder's history of occupational safety and health. The
history shall include, but not be limited to, at least a four-year
review prior to the date of the bid, or for whatever period less than
four years the bidder has been in business, of both of the
following:
(A) The bidder's history of worker injuries and illnesses as
reflected by workers' compensation costs, lost work days, injury
litigation, doctor's first reports, employer's reports, and Log 300
forms.
(B) The bidder's history of safety and health violations as
established by citations, special orders, and orders to take special
action, as well as any information memorandum issued by the Division
of Occupational Safety and Health, federal Occupational Safety and
Health Administration, or other occupational safety and health
agencies in other states or federal jurisdictions.
(b) Information submitted pursuant to subdivision (a) shall be a
public record except with respect to any individual's personal
identifiers.
(c) For purposes of this section, "bidder" includes all entities
holding active licenses required by the bid, if any, including the
component licenses for any joint ventures, and including other
entities that may be considered to be substantially the same business
by virtue of overlapping corporate or other business structure.
(d) A public entity may establish a process for prequalifying
prospective bidders for purposes of this section. Any
prequalification pursuant to this process shall be valid for one
calendar year following the date of the initial prequalification. As
part of any prequalification process established pursuant to this
subdivision, the entity also shall establish an appeal process
whereby prospective bidders may appeal the failure to prequalify and
the public may appeal the granting of prequalification to a
prospective bidder.
1202. (a) A public entity subject to this code shall include a
provision in the contract of each successful bidder to provide a safe
and healthful workplace.
(b) The Department of Industrial Relations, in collaboration with
affected state and local agencies and interested parties, shall
develop model guidelines for contractual language for public entities
to assure that the successful bidder provides a safe and healthful
workplace.
SEC. 15. It is the intent of the Legislature that any costs to the
Division of Occupational Safety and Health that may result from
transferring occupational safety and health retaliation cases from
the Division of Labor Standards Enforcement to the Division of
Occupational Safety and Health due to the enactment of this statute
shall be paid from grants available under subdivision (g) of Section
672 of Title 29 of the United States Code.
SEC. 16. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B 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 XIII B of the California
Constitution.