BILL ANALYSIS
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THIRD READING
Bill No: AB 2774
Author: Swanson (D)
Amended: 8/19/10 in Senate
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMM : 4-1, 6/23/10
AYES: DeSaulnier, Ducheny, Leno, Yee
NOES: Hollingsworth
NO VOTE RECORDED: Wyland
ASSEMBLY FLOOR : 44-29, 6/2/10 - See last page for vote
SUBJECT : Occupational safety and health
SOURCE : Author
DIGEST : This bill establishes a rebuttable presumption
as to when an employer commits a serious violation of the
provision requiring an employer to provide employees with a
safe workplace, as specified, and establishes new
procedures and standards for an investigation and the
determination by the division of a serious violation by an
employer which causes harm or exposes an employee to the
risk of harm.
Senate Floor Amendments of 8/19/10 make several technical
non-controversial grammatical changes that provide further
clarity on the requirements imposed by this bill on the
Division of Occupational Safety and Health.
CONTINUED
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Senate Floor Amendments of 8/10/10 repeal Labor Code
Section 6432 which provides a definition of a "serious
violation" and replace it with language that: 1) establish
a rebuttable presumption of when a "serious violation"
exists; 2) encourage Division of Occupational Safety and
Health and employer dialogue by establishing a process to
be followed by the Division before issuance of a citation;
3) allow an employer, as specified, to rebut a presumption
of a "serious violation;" 4) provide a definition for
"serious physical harm;" and, 5) define the qualifications
a safety engineer or industrial hygienist must have in
order to be deemed competent to offer testimony at
hearings.
ANALYSIS : Existing law requires an employer to provide
employees with a safe workplace and authorizes the Division
of Occupational Safety and Health within the Department of
Industrial Relations to enforce health and safety standards
in places of employment and to investigate and to issue a
citation and impose civil penalties when an employer
commits a serious violation that causes an employee to
suffer or potentially suffer, among other things, "serious
injury or illness" or "serious physical harm."
This bill establishes a rebuttable presumption as to when
an employer commits a serious violation of these provisions
and would define serious physical harm, as specified. The
bill also establishes new procedures and standards for an
investigation and the determination by the division of a
serious violation by an employer which causes harm or
exposes an employee to the risk of harm.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/16/10)
American Federation of State, County and Municipal
Employees
Bricklayers and Allied Craftworkers Local 3 of Northern
California
California Applicants' Attorneys Association
California Labor Federation
California Nurses Association/National Nurses Organizing
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Committee
California Rural Legal Assistance Foundation
East Bay Repetitive Strain Injury Support Group
International Brotherhood of Electrical Workers Local No.
595
Kazan, McClain, Lyons, Greenwood & Harley
National Lawyers Guild
Plumbers and Steamfitters Local 159
State Building and Construction Trades Council of
California, AFL-CIO
United Steelworkers Local 675
UPTE-CWA Local 9119
Voters Injured at Work
Worksafe!
OPPOSITION : (Verified 8/16/10)
PASMA North
PASMA South
Walter and Price LLP
ARGUMENTS IN SUPPORT : According to the author's office,
current workplace health and safety law does not contain an
adequate definition for "serious physical harm," which
impacts the ability of citations against employer for
"serious" violations from being upheld during the appeals
process. According to proponents, this bill is a necessary
first step to bring the California occupational safety and
health program into compliance with Federal OSHA law. In
addition, they state that this bill will help strengthen
the Cal/OSHA program, improve enforcement, and result in
better working conditions for all California workers.
Proponents note that California's rate of serious citations
is currently the lowest in the country. Moreover, they
argue, California is likely out of compliance with the
Federal OSHA program. Proponents contend that this bill is
needed because the OSH Appeals Board is applying the wrong
meaning to that phrase, won't issue a regulation, and won't
follow a regulation that Cal/OSHA might issue. According
to proponents, with no statutory definition for "serious
physical harm," far too many citations issued after serious
injuries or fatalities are reclassified as general
violations. Therefore, they believe that employers who
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should be cited and penalized appropriately for serious
violations are instead given a "slap on the wrist" and
issued a general violation citation instead.
Finally, supporters conclude that California's occupational
safety and health program has been the best in the country
in many regards for years. California cannot and should
not risk jeopardizing the entire program because one aspect
is out of compliance, particularly when this aspect of the
problem may be promptly and effectively addressed through
legislation. This bill is a crucial tool in the effort to
improve Cal/OSHA's ability to reach the worst offenders and
to level the playing field for legitimate law-abiding
businesses. Supporters state that this bill would benefit
those employers that play by the rules by enabling Cal/OSHA
to more effectively prosecute those employers that gain an
economic advantage from not protecting their employees'
safety and health.
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Bass, Beall, Block, Blumenfield,
Bradford, Brownley, Charles Calderon, Carter, Coto,
Davis, De La Torre, De Leon, Eng, Evans, Feuer, Fong,
Fuentes, Furutani, Hall, Hayashi, Hernandez, Hill,
Huffman, Jones, Bonnie Lowenthal, Ma, Mendoza, Monning,
Nava, V. Manuel Perez, Portantino, Ruskin, Salas,
Saldana, Skinner, Solorio, Swanson, Torlakson, Torres,
Torrico, Yamada, John A. Perez
NOES: Adams, Anderson, Bill Berryhill, Blakeslee,
Buchanan, Caballero, Conway, Cook, DeVore, Emmerson,
Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,
Harkey, Huber, Jeffries, Knight, Logue, Miller, Niello,
Nielsen, Norby, Silva, Smyth, Tran, Villines
NO VOTE RECORDED: Tom Berryhill, Chesbro, Galgiani, Lieu,
Nestande, Audra Strickland
PQ:RJG:nl 8/19/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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