BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Mark DeSaulnier, Chair
Date of Hearing: July 8, 2009 2009-2010 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: AB 1561
Author: Assembly Committee on Labor and Employment
Version: June 26, 2009
SUBJECT
Occupational safety and health: citation outcome analysis.
KEY ISSUE
Should the Legislature review the outcomes of citations issued
by the Division of Occupational Safety and Health (DOSH),
including those that are appealed through the Occupational
Safety and Health Appeals Board (OSHAB)?
Should the Legislature allow DOSH to prohibit a workplace
condition or practice that is dangerous to employees?
PURPOSE
To place additional reporting requirements on the Division of
Occupational Safety and Health (DOSH) and to make changes to the
definition of a dangerous place of employment.
ANALYSIS
Under existing law , the California Occupational Safety and
Health Act of 1973 was enacted to ensure safe and healthful
working conditions for all California workers by, among other
things, authorizing the enforcement of effective standards as
well as assisting and encouraging employers to maintain safe and
healthful working conditions. The Division of Occupational
Safety and Health (DOSH, also knows as Cal/OSHA), within the
state Department of Industrial Relations (DIR), is charged with
enforcing occupational health and safety laws, orders, and
standards, including the investigation of alleged violations of
those provisions.
Existing law gives Cal/OSHA's enforcement unit jurisdiction over
every employment, and place of employment in California,
necessary to adequately enforce and administer all occupational
safety and health standards and regulations. Existing law
requires the division, when it decides that a place of
employment, machine, device, apparatus, or equipment constitutes
an imminent hazard to employees, to prohibit entry to the
workplace or use of the machine, device, apparatus, or
equipment. The Cal/OSHA Enforcement Unit conducts inspections
of California workplaces based on worker complaints, accident
reports and high hazard industries.
Under existing law, the Occupational Safety and Health Appeals
Board (OSHAB), also within DIR, is a three-member judicial body
appointed by the Governor and confirmed by the Senate. OSHAB
handles appeals from private and public-sector employers
regarding citations issued by DOSH for alleged violations of
workplace safety and health laws. Employers may contest the
existence of violations alleged in a citation, as well as the
amount of any proposed civil penalty, within 15 working days of
its receipt. After review and/or a hearing, OSHAB must issue a
decision, based on findings of fact, affirming, modifying, or
vacating DOSH's citation, order, or proposed penalty, or
directing other appropriate relief.
Existing law requires the director of DIR to prepare and submit
to the Legislature, not later than March 1, an annual report on
the activities of DOSH, including, among other components, the
total inspections made and citations issued; the number of civil
penalties assessed, total amount of fines collected, and the
number of appeals heard; and information contained in a
specified report prepared by the Bureau of Investigations of the
division.
Existing law also requires the division, when it decides that a
place of employment, machine, device, apparatus, or equipment
constitutes an imminent hazard to employees, to prohibit entry
to the workplace or use of the machine, device, apparatus, or
Hearing Date: July 8, 2009 AB 1561
Consultant: Alma Perez Page 2
Senate Committee on Labor and Industrial Relations
equipment.
This Bill would require the Division of Occupational Safety and
Health (DOSH) to collaborate with the Occupational Safety and
Health Appeals Board (OSHAB) to prepare an annual report
analyzing the outcomes of citations and other notifications to
employers, as specified. In addition, this bill would also
prohibit a workplace condition or practice that is dangerous to
employees, as specified.
With regard to the report requirement, this bill would:
Require DOSH, in collaboration with OSHAB, 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.
Require DOSH to present, not later than March 1 of each
year, the written report analyzing the outcomes of the
prior year to the Speaker of the Assembly and the
Chairperson of the Senate Committee on Rules for assignment
to the appropriate committee or committees for evaluation.
Declare the intent of the Legislature that this yearly
report be similar to the winter 1999 DOSH report entitled
"Outcomes Analysis of Pre-Hearing Conferences and
Administrative Law Hearings Involving Cal/OSHA Citations,"
as specified.
COMMENTS
1. Need for this bill?
The Division of Occupational Safety and Health is responsible
for enforcing occupational health and safety laws, orders, and
standards, including the investigation of alleged violations
of these laws. An employer may contest the existence of
Hearing Date: July 8, 2009 AB 1561
Consultant: Alma Perez Page 3
Senate Committee on Labor and Industrial Relations
alleged violations cited by DOSH, as well as the amount of any
civil penalty, to the Occupational Safety and Health Appeals
Board (OSHAB). The appeals board is required to review and/or
hold a hearing, and must issue a decision affirming,
modifying, or vacating the citation or directing other
appropriate relief.
Over the past several months the California Legislature has
questioned the actions and procedures of OSHAB in handling
appeals cases. The Legislature has held two hearings on the
appeals board in the past several months, one on January 7,
2009 by the Senate Rules Committee for the confirmation of
OSHAB's chair Candice Traeger and another on May 13, 2009 by
this Committee to study concerns raised during the January
hearing. Concerns raised included discontent with OSHAB's
operational practices of over-scheduling cases, denying or
ignoring justified continuance requests, booking cases in
inconvenient venues, and significantly reducing a minimum
penalty requirement for non-reporting of an accident. Several
worker advocates testifying at both hearings expressed
concerns that OSHAB's operational practices have made it very
difficult for both the division and employers to litigate
appeal cases, forcing many of them into settlements.
Although these concerns may be affecting interested parties
before the appeals board, there is no actual report or data
that can provide an objective review of citations and appeals.
In addition, there has recently been some disagreement
concerning where in the process penalties are reduced, how
much they are reduced, and for what reason. This bill would
require DOSH, in collaboration with OSHAB, to prepare an
annual report summarizing the extent to which penalties and
other orders contained in citations and notifications issued
by DOSH are reduced through its appeals process. In
addition, this bill would also make a change to current law
regarding what is deemed a dangerous place of employment, as
specified.
2. Legislative Hearings on the Occupational Safety and Health
Appeals Board :
During testimony provided at the January 7, 2009 Senate Rules
Hearing Date: July 8, 2009 AB 1561
Consultant: Alma Perez Page 4
Senate Committee on Labor and Industrial Relations
Committee confirmation hearing for Candice Traeger to continue
as chair of the board, several questions arose regarding the
actions and procedures of the appeals board in reducing the
backlog of appeals cases that existed. Beginning in the year
2000, OSHAB began to see an increased number of appeals filed
as a result of AB 1127 (Steinberg, 1999), which increased
penalties for certain violations of occupational safety and
health standards, and the number continued to rise creating a
backlog of cases that the appeals board has been tackling for
the past several years. During Candice Traeger's testimony
she stated that her background was put to a test when she
first arrived at OSHAB in 2004 because of the backlog that
existed as well as a federal Complaint About State Program
Administration (CASPA) that had been filed against OSHAB. The
CASPA alleged that OSHAB was not resolving appeals on a timely
manner and included examples of appeal cases not resolved in
three to six years. Candice Traeger testified that with the
help of staff and the implementing of many new ideas, OSHAB
has been able to reduce the backlog of appeals cases from
4,000 to 87 (about 197 appeals) cases during her tenure. In
addition, she told the committee that the former 24 months it
took to resolve appeals is now down to nine months, giving all
parties a timely opportunity to have their cases heard. The
board continues to receive more than 200 new appeal cases
every month, but Candice Traeger testified that with the
backlog now in the past, the board will now embark on customer
service.
While Candice Traeger as Chair of OSHAB has successfully
reduced the backlog of appeals, the process that the board
utilized in doing this has raised multiple concerns. Some
worker advocates expressed concerns with OSHAB's operational
practices of over-scheduling the prosecutors, denying or even
ignoring justified continuance requests, and booking cases in
inconvenient venues all allegedly designed to "encourage" the
parties to settle their cases through negotiation rather than
going through litigation. Many claim that OSHAB's operational
practices have made it very difficult for both the division
and employers to litigate appeal cases to the point where many
have been forced into settlements they otherwise would not
have agreed to.
Hearing Date: July 8, 2009 AB 1561
Consultant: Alma Perez Page 5
Senate Committee on Labor and Industrial Relations
At the request of Senate President Pro Tem Darrell Steinberg,
the Senate Labor and Industrial Relations Committee conducted
an oversight hearing to study these concerns on May 13, 2009.
During the hearing Chairwoman Traeger testified on efforts the
appeals board has taken to address some of the concerns raised
including the possibility of scheduling fewer hearings at the
same time and expanding the list of possible hearing venues.
The Chair of this Committee has requested a follow-up hearing
to review OSHAB's progress in addressing these concerns.
3. Proponent Arguments :
Proponents argue that the appeals board has done a commendable
job of reducing its 24-month and 4,000 case backlog over the
past year. However, proponents argue, this clearing of the
deck cannot come at the compromise of enforcing our health and
safety protections. According to the author, in recent years,
there have been criticisms by some stakeholders that the
Cal/OSHA appellate process has not been functioning as
intended. Proponents contend that questions have been raised
in the Legislature about the appeals board's negotiating away
penalties, dropping citations based on technicalities, and
requiring abatement of serious hazards pending appeal.
Proponents argue that greatly reducing penalties to a very low
amount does not serve as an adequate deterrent because it will
create an incentive for employers to appeal a citation that
they otherwise would not appeal on the merits.
According to the author, an "outcomes analysis" prepared by
DOSH in 1999 evaluated the outcomes of pre-hearing conferences
and administrative hearings. The author cites that the report
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 author also states that the
study indicated that 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. In addition, the author
states that the analysis also concluded that for both
pre-hearing conferences and administrative hearings, there was
$5,376,317 in proposed penalties, but that only $1,622,424 (or
Hearing Date: July 8, 2009 AB 1561
Consultant: Alma Perez Page 6
Senate Committee on Labor and Industrial Relations
30.2 percent) was actually assessed. According to the author,
it does not appear that another "outcomes analysis" has been
prepared since 1999, however, worker advocates contend that
the situation is similar, if not worse at the present time.
Proponents support this bill because it would provide
transparency on the adequacy of Cal/OSHA's resources and its
effectiveness and efficiency, as well as strengthen
enforcement of workplace safety and health provisions. This
bill would require the annual report filed by DOSH to analyze
what happens to penalty citations throughout the appellate
process. This report will provide the Legislature and
interested parties with a comprehensive analysis of what
happens to these penalties, how much they are reduced through
the process and why. Proponents argue that more information
about fine reductions will help ensure that fines for safety
and health violations are fair, effective, consistent, and
arrived at in a transparent process.
4. Opponent Arguments :
None received to date.
SUPPORT
California Applicants' Attorneys Association (CAAA)
California Labor Federation, AFL-CIO
California Rural Legal Assistance Foundation
Worksafe, Inc.
OPPOSITION
None received to date.
* * *
Hearing Date: July 8, 2009 AB 1561
Consultant: Alma Perez Page 7
Senate Committee on Labor and Industrial Relations