BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1561|
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THIRD READING
Bill No: AB 1561
Author: Assembly Labor and Employment Committee
Amended: 6/26/09 in Senate
Vote: 21
SENATE LABOR & INDUS. RELATIONS COMMITTEE : 5-1, 7/8/09
AYES: DeSaulnier, Wyland, Ducheny, Leno, Yee
NOES: Hollingsworth
SENATE APPROPRIATIONS COMMITTEE : 9-3, 8/17/09
AYES: Kehoe, Corbett, Hancock, Leno, Oropeza, Price, Wolk,
Wyland, Yee
NOES: Cox, Denham, Walters
NO VOTE RECORDED: Runner
ASSEMBLY FLOOR : 49-30, 6/1/09 - See last page for vote
SUBJECT : Occupational safety and health: citation
outcome analysis
SOURCE : Author
DIGEST : This bill requires the Division of Occupational
Safety and Health to collaborate with the Occupational
Safety and Health Appeals Board to prepare an annual report
analyzing the outcomes of citations and other notifications
to employers, as specified. In addition, this bill also
prohibits a workplace condition or practice that is
dangerous to employees, as specified.
CONTINUED
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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
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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 equipment.
This bill requires the DOSH to collaborate with 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:
1. Requires 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.
2. Requires 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 Rules Committee for assignment
to the appropriate committee or committees for
evaluation.
3. Declares 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
The Division of Occupational Safety and Health is
responsible for enforcing occupational health and safety
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laws, orders, and standards, including the investigation of
alleged violations of these laws. An employer may contest
the existence of alleged violations cited by DOSH, as well
as the amount of any civil penalty, to OSHAB. OSHAB 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 the Senate Rules 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 requires 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 makes a change to
current law regarding what is deemed a dangerous place of
employment, as specified.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
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According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2009-10 2010-11 2011-12
Fund
Report $75 annually Special*
Enforcement Minor, likely absorbable costs ongoing
Special*
SUPPORT : (Verified 8/19/09)
California Applicants' Attorneys Association
California Labor Federation, AFL-CIO
California Rural Legal Assistance Foundation
Worksafe, Inc.
ARGUMENTS IN SUPPORT : 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's office, 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's office, an "outcomes analysis"
prepared by DOSH in 1999 evaluated the outcomes of
pre-hearing conferences and administrative hearings. The
author's office 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
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violation was unchanged but the penalty reduced in another
38 percent of cases. The author's office 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's office 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 30.2 percent) was actually assessed. According to the
author's office, 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 provides
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 requires 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.
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Beall, Blumenfield, Brownley,
Buchanan, Caballero, Charles Calderon, Carter, Chesbro,
Coto, Davis, De La Torre, De Leon, Eng, Evans, Feuer,
Fong, Fuentes, Furutani, Galgiani, Hall, Hayashi,
Hernandez, Hill, Huffman, Jones, Krekorian, Lieu, Bonnie
Lowenthal, Ma, Mendoza, Monning, Nava, John A. Perez, V.
Manuel Perez, Portantino, Price, Ruskin, Salas, Saldana,
Skinner, Solorio, Swanson, Torlakson, Torres, Torrico,
Yamada, Bass
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Blakeslee, Conway, Cook, DeVore, Duvall, Emmerson,
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Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,
Harkey, Huber, Jeffries, Knight, Logue, Miller, Nestande,
Niello, Nielsen, Silva, Smyth, Audra Strickland, Tran,
Villines
NO VOTE RECORDED: Block
AGB:do 8/19/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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