BILL ANALYSIS
AB 1561
Page A
Date of Hearing: April 22, 2009
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
William W. Monning, Chair
AB 1561 (Committee on Labor and Employment) - As Introduced:
March 11, 2009
SUBJECT : Occupational safety and health: citation outcomes
analysis.
SUMMARY : Requires the Division of Occupational Safety and
Health (DOSH) to collaborate with the Occupational Safety and
Health Appeals Board (Appeals Board) to prepare an annual report
summarizing the outcomes of citations to employers, as
specified. Specifically, this bill :
1 Requires DOSH to collaborate with the Appeals Board to prepare
an annual report that analyzes the outcomes of each citation,
notification of failure to abate, special order, and order to
take special action that was appealed by an employer and meets
specified other criteria.
2)Requires DOSH to present, not later than March 1 of each ear,
the written report analyzing the outcomes of the prior year o
the Speaker of the Assembly and the Chairperson of the Senate
Committee on Rules for assignment to the appropriate committee
or committees for evaluation.
3)Declares the intent of the Legislature that the report
prepared each year pursuant to this bill be similar to the
winter 1999 report entitled "Outcomes Analysis of Pre-Hearing
Conferences and Administrative Law Hearings Involving Cal/OSHA
Citations" prepared by DOSH. However, the report prepared
pursuant to this bill is intended to include all the
citations, orders, and other notifications that satisfy the
criteria specified in the bill, rather than just a sample of
them, as were analyzed in the 1999 report.
FISCAL EFFECT : Unknown
COMMENTS : In recent years, there have been criticisms by some
stakeholders that the Cal-OSHA appellate process is not
functioning as intended. In particular, some critics have
argued that penalties proposed against employer are often
greatly reduced, sometimes to a very low amount that does not
AB 1561
Page B
serve as an adequate deterrent.
An "outcomes analysis" prepared by DOSH in 1999 evaluated the
outcomes of pre-hearing conferences and administrative hearings.
That study indicated that in pre-hearing conferences, the
violation was changed and the penalty was reduced in 38.6
percent of cases, while the violation was unchanged but the
penalty reduced in another 38 percent of cases. The study also
indicated in administrative hearings violations were changed and
penalties reduced in 29.1 percent of cases, while violations
were unchanged but penalties still reduced in an additional 29.6
percent of cases.
It does not appear that another "outcomes analysis" has been
prepared since that time, but advocates contend the situation is
similar, if not worse at the present time<1>.
Advocates contend that when DOSH proposes penalties against an
employer, it is required to follow criteria and a formula set
out in regulations. However, they have argued that the Appeals
Board is not required to follow any such standards in assessing
penalties, which results in arbitrary and inconsistent
application of those penalties. The same "outcomes analysis"
cited above concluded that for both pre-hearing conferences and
administrative hearings, there were $5,376,317 in proposed
penalties, but that only $1,622,424 (or 30.2 percent) was
actually assessed.
In recent months, there has been some disagreement or
conflicting information concerning where in the process
penalties are reduced, how much the penalties are reduced, and
for what reasons. Therefore, this bill would require DOSH and
the Appeals Board to collaborate on an annual basis to prepare a
report that analyzes the outcomes of specified enforcement
actions.
REGISTERED SUPPORT / OPPOSITION :
Support
---------------------------
<1> It is worth noting that the introduction to the "outcomes
analysis" states the following: "An effective enforcement action
is one which results in abatement of the workplace hazard as
quickly as possible, and, when contested by the employer, is
judicially affirmed when legally reviewed" (emphasis provided).
AB 1561
Page C
California Applicants' Attorneys Association
California Labor Federation, AFL-CIO
California Rural Legal Assistance Foundation
Opposition
None on file.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091