BILL NUMBER: AB 1106 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 25, 2011
INTRODUCED BY Assembly Member Achadjian
FEBRUARY 18, 2011
An act to amend Section 6425 Sections 62.5
and 6434 of the Labor Code, relating to employment
occupational safety and health .
LEGISLATIVE COUNSEL'S DIGEST
AB 1106, as amended, Achadjian. Occupational safety and health:
death or serious bodily impairment local
public entities: penalty moneys: grants .
Existing law requires the Commission on Health and Safety and
Workers' Compensation in the Department of Industrial Relations to
review and approve applications from employers and employee
organizations, as well as applications submitted jointly by an
employer organization and an employee organization, for grants to
assist in establishing effective occupational injury and illness
prevention programs, as specified.
Existing law requires certain civil and administrative penalties
relating to workers' compensation to be deposited in the Workers'
Compensation Administration Revolving Fund. Existing law authorizes
the department to expend these funds upon approval by the commission,
and upon appropriation from the fund by the Legislature, to fund the
above-described grants and other activities and expenses of the
commission.
Existing law requires any civil or administrative penalty assessed
pursuant to the California Occupational Safety and Health Act of
1973 against a school district, county board of education, county
superintendent of schools, charter school, community college
district, California State University, University of California, or
joint powers agency performing education functions to be deposited
with the Workplace Health and Safety Revolving Fund. Existing law
requires moneys in the fund that are not refunded to be expended as
provided for in the above-described grant provisions to assist
schools in establishing effective occupational injury and illness
prevention programs.
This bill would, instead, require any civil or administrative
penalty assessed pursuant to the California Occupational Safety and
Health Act of 1973 against a county, city, special district, public
authority, public agency, joint powers authority, school district,
county board of education, county superintendent of schools, charter
school, community college district, California State University,
University of California, or joint powers agency performing education
functions to be deposited with the Workers' Compensation
Administration Revolving Fund. The bill would require moneys in the
fund that are not refunded to be expended as provided for in the
above-described grant provisions to assist local public entities in
establishing and maintaining effective occupational injury and
illness prevention programs.
This bill would add funding the above-described grants to the list
of purposes for which moneys in the Workers' Compensation
Administration Revolving Fund may be expended. This bill would make
other nonsubstative changes to these provisions.
Existing law, the Labor Code Private Attorneys General Act of
2004, allows aggrieved employees to bring civil actions to recover
penalties for violations of the Labor Code if the Labor and Workforce
Development Agency or its departments, divisions, commissions,
boards, agencies, or employees do not do so. The penalties collected
in these actions are distributed 75% to the agency to be continuously
appropriated for purposes of enforcement and education and 25% to
the aggrieved employee, except as specified.
This bill would provide that the above provisions pertaining to
civil or administrative penalties assessed pursuant to the California
Occupational Safety and Health Act of 1973 shall not apply to that
portion of any civil or administrative penalty that is distributed
directly to an aggrieved employee pursuant to the above-described
provisions.
Existing law prescribes criminal penalties for the willful
violation of an occupational safety or health standard or order
causing the death of, or permanent or prolonged impairment to, the
employee.
This bill would make nonsubstantive changes to this provision.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 62.5 of the Labor
Code is amended to read:
62.5. (a) (1) The Workers' Compensation Administration Revolving
Fund is hereby created as a special account in the State Treasury.
Money Moneys in the fund may
shall be expended by the department, upon
appropriation by the Legislature, for all of the following purposes,
and may not be used or borrowed for any other purpose:
(A) For the administration of the workers' compensation program
set forth in this division and Division 4 (commencing with Section
3200), other than the activities financed pursuant to Section 3702.5.
(B) For the Return-to-Work Program set forth in Section 139.48.
(C)
(B) For the enforcement of the insurance coverage
program established and maintained by the Labor Commissioner pursuant
to Section 90.3.
(C) For the purposes described in Sections 78 and 6434.
(2) The fund shall consist of surcharges made pursuant to
paragraph (1) of subdivision (f).
(b) (1) The Uninsured Employers Benefits Trust Fund is hereby
created as a special trust fund account in the State Treasury, of
which the director is trustee, and its sources of funds are as
provided in paragraph (1) of subdivision (f). Notwithstanding Section
13340 of the Government Code, the fund is continuously appropriated
for the payment of nonadministrative expenses of the workers'
compensation program for workers injured while employed by uninsured
employers in accordance with Article 2 (commencing with Section 3710)
of Chapter 4 of Part 1 of Division 4, and shall not be used for any
other purpose. All moneys collected shall be retained in the trust
fund until paid as benefits to workers injured while employed by
uninsured employers. Nonadministrative expenses include audits and
reports of services prepared pursuant to subdivision (b) of Section
3716.1. The surcharge amount for this fund shall be stated
separately.
(2) Notwithstanding any other provision of law, all references to
the Uninsured Employers Fund shall mean the Uninsured Employers
Benefits Trust Fund.
(3) Notwithstanding paragraph (1), in the event that budgetary
restrictions or impasse prevent the timely payment of administrative
expenses from the Workers' Compensation Administration Revolving
Fund, those expenses shall be advanced from the Uninsured Employers
Benefits Trust Fund. Expense advances made pursuant to this paragraph
shall be reimbursed in full to the Uninsured Employers Benefits
Trust Fund upon enactment of the annual Budget Act.
(4) Any moneys from penalties collected pursuant to Section 3722
as a result of the insurance coverage program established under
Section 90.3 shall be deposited in the State Treasury to the credit
of the Workers' Compensation Administration Revolving Fund created
under this section, to cover expenses incurred by the director under
the insurance coverage program. The amount of any penalties in excess
of payment of administrative expenses incurred by the director for
the insurance coverage program established under Section 90.3 shall
be deposited in the State Treasury to the credit of the Uninsured
Employers Benefits Trust Fund for nonadministrative expenses, as
prescribed in paragraph (1), and notwithstanding paragraph (1), shall
only be available upon appropriation by the Legislature.
(c) (1) The Subsequent Injuries Benefits Trust Fund is hereby
created as a special trust fund account in the State Treasury, of
which the director is trustee, and its sources of funds are as
provided in paragraph (1) of subdivision (f). Notwithstanding Section
13340 of the Government Code, the fund is continuously appropriated
for the nonadministrative expenses of the workers' compensation
program for workers who have suffered serious injury and who are
suffering from previous and serious permanent disabilities or
physical impairments, in accordance with Article 5 (commencing with
Section 4751) of Chapter 2 of Part 2 of Division 4, and Section 4 of
Article XIV of the California Constitution, and shall not be used for
any other purpose. All moneys collected shall be retained in the
trust fund until paid as benefits to workers who have suffered
serious injury and who are suffering from previous and serious
permanent disabilities or physical impairments. Nonadministrative
expenses include audits and reports of services pursuant to
subdivision (c) of Section 4755. The surcharge amount for this fund
shall be stated separately.
(2) Notwithstanding any other law, all references to the
Subsequent Injuries Fund shall mean the Subsequent Injuries Benefits
Trust Fund.
(3) Notwithstanding paragraph (1), in the event that budgetary
restrictions or impasse prevent the timely payment of administrative
expenses from the Workers' Compensation Administration Revolving
Fund, those expenses shall be advanced from the Subsequent Injuries
Benefits Trust Fund. Expense advances made pursuant to this paragraph
shall be reimbursed in full to the Subsequent Injuries Benefits
Trust Fund upon enactment of the annual Budget Act.
(d) The Occupational Safety and Health Fund is hereby created as a
special account in the State Treasury. Moneys in the account may be
expended by the department, upon appropriation by the Legislature,
for support of the Division of Occupational Safety and Health, the
Occupational Safety and Health Standards Board, and the Occupational
Safety and Health Appeals Board, and the activities these entities
perform as set forth in this division, and Division 5 (commencing
with Section 6300).
(e) The Labor Enforcement and Compliance Fund is hereby created as
a special account in the State Treasury. Moneys in the fund may be
expended by the department, upon appropriation by the Legislature,
for the support of the activities that the Division of Labor
Standards Enforcement performs pursuant to this division and Division
2 (commencing with Section 200), Division 3 (commencing with Section
2700), and Division 4 (commencing with Section 3200). The fund shall
consist of surcharges imposed pursuant to paragraph (3) of
subdivision (f).
(f) (1) Separate surcharges shall be levied by the director upon
all employers, as defined in Section 3300, for purposes of deposit in
the Workers' Compensation Administration Revolving Fund, the
Uninsured Employers Benefits Trust Fund, the Subsequent Injuries
Benefits Trust Fund, and the Occupational Safety and Health Fund. The
total amount of the surcharges shall be allocated between
self-insured employers and insured employers in proportion to payroll
respectively paid in the most recent year for which payroll
information is available. The director shall adopt reasonable
regulations governing the manner of collection of the surcharges. The
regulations shall require the surcharges to be paid by self-insurers
to be expressed as a percentage of indemnity paid during the most
recent year for which information is available, and the surcharges to
be paid by insured employers to be expressed as a percentage of
premium. In no event shall the surcharges paid by insured employers
be considered a premium for computation of a gross premium tax or
agents' commission. In no event shall the total amount of the
surcharges paid by insured and self-insured employers exceed the
amounts reasonably necessary to carry out the purposes of this
section.
(2) The surcharge levied by the director for the Occupational
Safety and Health Fund, pursuant to paragraph (1), shall not generate
revenues in excess of fifty-two million dollars ($52,000,000) on and
after the 2009-10 fiscal year, adjusted for each fiscal year as
appropriate to reconcile any over/under assessments from previous
fiscal years pursuant to Sections 15606 and 15609 of Title 8 of the
California Code of Regulations, and may increase by not more than the
state-local government deflator each year thereafter through July 1,
2013, and, as appropriate, to reconcile any over/under assessments
from previous fiscal years. For the 2013-14 fiscal year, the
surcharge level shall return to the level in place on June 30, 2009,
adjusted for inflation based on the state-local government deflator.
(3) A separate surcharge shall be levied by the director upon all
employers, as defined in Section 3300, for purposes of deposit in the
Labor Enforcement and Compliance Fund. The total amount of the
surcharges shall be allocated between employers in proportion to
payroll respectively paid in the most recent year for which payroll
information is available. The director shall adopt reasonable
regulations governing the manner of collection of the surcharges. In
no event shall the total amount of the surcharges paid by employers
exceed the amounts reasonably necessary to carry out the purposes of
this section.
(4) The surcharge levied by the director for the Labor Enforcement
and Compliance Fund shall not exceed thirty-seven million dollars
($37,000,000) in the 2009-10 fiscal year, adjusted as appropriate to
reconcile any over/under assessments from previous fiscal years, and
shall not be adjusted each year thereafter by more than the
state-local government deflator, and, as appropriate, to reconcile
any over/under assessments from previous fiscal years pursuant to
Sections 15606 and 15609 of Title 8 of the California Code of
Regulations.
(5) The regulations adopted pursuant to paragraph (1) to (4),
inclusive, shall be exempt from the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code).
(g) On and after July 1, 2013, subdivision (e) and paragraphs (2)
to (4), inclusive, of subdivision (f) are inoperative, unless a later
enacted statute, that is enacted before July 1, 2013, deletes or
extends that date.
SEC. 2. Section 6434 of the Labor Code
is amended to read:
6434. (a) Any civil or administrative penalty assessed pursuant
to this chapter against a county, city, special district, public
authority, public agency, joint powers authority, school
district, county board of education, county superintendent of
schools, charter school, community college district, California State
University, University of California, or joint powers agency
performing education functions shall be deposited with
in the Workplace Health and Safety
Workers' Compensation Administration Revolving
Fund established pursuant to Section 78 62.5
.
(b) Any county, city, special district, public authority,
public agency, joint powers authority, school district, county
board of education, county superintendent of schools, charter school,
community college district, California State University, University
of California, or joint powers agency performing education functions
may apply for a refund of their civil penalty, with interest, if all
conditions previously cited have been abated, they have abated any
other outstanding citation, and if they have not been cited by the
division for a serious violation at the same county, city,
special district, public authority, public agency, joint powers
authority, or school within two years of the date of the
original violation. Funds not applied for within two years and six
months of the time of the original violation shall be expended as
provided for in Section 78 to assist schools
local public entities in establishing and maintaining
effective occupational injury and illness prevention programs.
(c) This section does not apply to the portion of any civil or
administrative penalty which is distributed directly to an aggrieved
employee pursuant to Section 2699.
SECTION 1. Section 6425 of the Labor Code is
amended to read:
6425. (a) An employer and an employee having direction,
management, control, or custody of any employment, place of
employment, or of any other employee, who willfully violates an
occupational safety or health standard, order, or special order, or
Section 25910 of the Health and Safety Code, and that violation
caused death to an employee, or caused permanent or prolonged
impairment of the body of an employee, is guilty of a public offense
punishable by imprisonment in a county jail for a term not exceeding
one year, or by a fine not exceeding one hundred thousand dollars
($100,000), or by both that imprisonment and fine; or by imprisonment
in the state prison for 16 months, or two or three years, or by a
fine of not more than two hundred fifty thousand dollars ($250,000),
or by both that imprisonment and fine; and in either case, if the
defendant is a corporation or a limited liability company, the fine
may not exceed one million five hundred thousand dollars
($1,500,000).
(b) If the conviction is for a violation committed within seven
years after a conviction under subdivision (b), (c), or (d) of
Section 6423 or subdivision (c) of Section 6430, punishment shall be
by imprisonment in the state prison for a term of 16 months, two, or
three years, or by a fine not exceeding two hundred fifty thousand
dollars ($250,000), or by both that fine and imprisonment, but if the
defendant is a corporation or limited liability company, the fine
may not be less than five hundred thousand dollars ($500,000) or more
than two million five hundred thousand dollars ($2,500,000).
(c) If the conviction is for a violation committed within seven
years after a first conviction of the defendant for a crime involving
a violation of subdivision (a), punishment shall be by imprisonment
in the state prison for two, three, or four years, or by a fine not
exceeding two hundred fifty thousand dollars ($250,000), or by both
that fine and imprisonment, but if the defendant is a corporation or
a limited liability company, the fine shall not be less than one
million dollars ($1,000,000) but may not exceed three million five
hundred thousand dollars ($3,500,000).
(d) In determining the amount of the fine to be imposed under this
section, the court shall consider all relevant circumstances,
including, but not limited to, the nature, circumstance, extent, and
gravity of the violation, any prior history of violations by the
defendant, the ability of the defendant to pay, and any other matters
the court determines the interests of justice require.
(e) As used in this section, "willfully" has the same definition
as it has in Section 7 of the Penal Code. This subdivision is
intended to be a codification of existing law.
(f) This section does not prohibit a prosecution under Section 192
of the Penal Code.