BILL ANALYSIS
AB 1561
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1561 (Labor and Employment Committee)
As Amended June 26, 2009
Majority vote
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|ASSEMBLY: |49-30|(June 1, 2009) |SENATE: |25-13|(September 1, |
| | | | | |2009) |
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Original Committee Reference: L. & E.
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.
The Senate amendments authorize DOSH to prohibit a condition or
practice that constitutes an imminent hazard to employees.
AS PASSED BY THE ASSEMBLY , this bill:
1 Required 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)Required DOSH to present, not later than March 1 of each ear,
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.
3)Declared 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.
AB 1561
Page 2
FISCAL EFFECT : According to the Senate Appropriations
Committee, annual costs to DOSH of about $75,000 to prepare
annual reports. The enforcement provisions of the bill would
result in minor, likely absorbable costs ongoing.
COMMENTS : In recent years, there have been criticisms by some
stakeholders that the DOSH 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 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% of
cases, while the violation was unchanged but the penalty reduced
in another 38%of cases. The study also indicated in
administrative hearings violations were changed and penalties
reduced in 29.1% of cases, while violations were unchanged but
penalties still reduced in an additional 29.6% 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.
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%) 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.
AB 1561
Page 3
In addition, under current law, DOSH may prohibit entry into a
place of employment that is deemed to constitute an imminent
hazard to employees. DOSH may also prohibit the use of a
machine, device, apparatus or equipment when it is in a
dangerous condition, is not properly guarded or is dangerously
placed so as to constitute an imminent hazard to employees.
This bill would also authorize DOSH to prohibit a condition or
practice that meets these same criteria.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
FN: 0002180