BILL NUMBER: AB 2346 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 25, 2012
AMENDED IN ASSEMBLY APRIL 9, 2012
INTRODUCED BY Assembly Member Butler
FEBRUARY 24, 2012
An act to amend Section 6330 of, and to add Chapter 10 (commencing
with Section 6720) to Part 1 of Division 5 of, the Labor Code, and
to add Section 192.1 to the Penal Code, relating to occupational
safety.
LEGISLATIVE COUNSEL'S DIGEST
AB 2346, as amended, Butler. Agricultural employee safety:
heat-related illness.
(1) Existing law permits the Occupational Safety and Health
Standards Board within the Department of Industrial Relations to
adopt occupational health and safety standards to protect the welfare
of employees. The Division of Occupational Safety and Health
enforces occupational safety and health standards and orders. Certain
violations of these standards and orders are crimes.
This bill would prescribe specified duties on employers to reduce
the risk of heat illness among agricultural employees, to be enforced
by the division. The bill would impose specified civil penalties,
and create a private right of action, for violations of these
requirements. The bill would impose a state-mandated local program
because certain violations of the bill's requirements would be a
crime under existing provisions of law. The bill would require the
Director of Industrial Relations to provide an annual report to the
Legislature regarding the enforcement of the requirements.
The bill would provide that directing an agricultural employee to
perform , or supervising an agricultural employee in the
performance of, outdoor work without providing the employee
with both continuous, ready access to an area of shade sufficient to
allow the body to cool and potable water that is suitably cool and
available in quantities sufficient to allow the employee to drink one
quart of water per hour throughout the employee's work shift
, where the employee dies as the proximate result of
heat-related causes, would may constitute the
crime of involuntary manslaughter , as provided .
By expanding the bases upon which the crime of involuntary
manslaughter could be committed, the bill would impose a
state-mandated local program. The bill , except as
otherwise provided, would require restitution under
existing provisions of law to the immediate surviving family of
the deceased employee in an amount between
up to $1,000,000 and $1,500,000, inclusive,
in compensation for the lost future earnings of the deceased
employee, when involuntary manslaughter under the bill is
committed.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act may be known, and shall be cited, as the Farm
Worker Safety Act of 2012.
SEC. 2. Section 6330 of the Labor Code is amended to read:
6330. (a) The director shall prepare and submit to the
Legislature, not later than March 1, an annual report on the division
activities. The report shall include, but need not be limited to,
the following information for the previous calendar year:
(1) The amount of funds allocated and spent in enforcement,
education and research, and administration by the division.
(2) Total inspections made, and citations issued by the division.
(3) The number of civil penalties assessed, total amount of fines
collected, and the number of appeals heard.
(4) The number of contractors referred to the Contractor's State
License Board for hearing, pursuant to Section 7109.5 of the Business
and Professions Code, and the total number of these cases resulting
in suspension or revocation of a license.
(5) The report from the division prepared by the Bureau of
Investigations for submission to the director pursuant to Section
6315.3.
(6) Recommendations for legislation that improves the ability of
the division to provide safety in places of employment.
(7) (A) The number of complaints received charging a violation of
Chapter 10 (commencing with Section 6720), and the number of those
complaints that did not result in an onsite inspection.
(B) The amount of initial penalties imposed for a violation of
Chapter 10 (commencing with Section 6720), the amount by which those
penalties were reduced through amendment, the amount by which those
penalties were reduced through informal settlement, the amount by
which those penalties were reduced through formal settlement, the
amount by which those penalties were reduced by decision of the
appeals board, other than a decision approving a formal settlement,
and the amount by which those penalties were reduced by any other
means.
(C) The amount of penalties collected for a violation of Chapter
10 (commencing with Section 6720).
(b) The report shall be made 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.
SEC. 3. Chapter 10 (commencing with Section 6720) is added to Part
1 of Division 5 of the Labor Code, to read:
CHAPTER 10. AGRICULTURAL EMPLOYMENT
6720. For the purpose of this chapter, the following terms have
the following meanings:
(a) "Acclimatization" means temporary adaptation of the body to
work in the heat that occurs gradually when a person is exposed to
the heat.
(b) "Employee" means an agricultural employee.
(c) "Employer" means an agricultural employer.
(d) "Environmental risk factors for heat illness" means working
conditions that create the possibility that heat illness could occur,
including air temperature, relative humidity, radiant heat from the
sun and other sources, conductive heat sources such as the ground,
air movement, workload severity and duration, and protective
clothing.
(e) "Farm operator" includes both of the following:
(1) A person who owns the real property used in the farming
operation, except that, when the real property is leased, the owner
is considered a farm operator only if he or she gains something of
benefit from the farming operation beyond the reasonable and
customary rent or cost of leasing the property.
(2) A person who leases the real property used in the farming
operation.
(f) "Farming operation" shall be liberally construed to include
farming in any of its branches, and includes the production,
cultivation, growing, harvesting, packing, whether in a field,
packing shed, or any other location, or shipping of any agricultural
or horticultural commodities, including commodities defined as
agricultural commodities in Section 1141j(f) of Title 12 of the
United States Code; any activity necessary to the operation of a
dairy farm, as defined in Section 32505 of the Food and Agricultural
Code; the raising of livestock, bees, furbearing animals, or poultry;
and any practices, including any forestry or lumbering operations,
performed by a farm operator or in a farm operation as an incident to
or in conjunction with these farming operations, including
preparation for market and delivery to storage or to market or to
carriers for transportation to market.
(g) "Heat illness" means a serious medical condition resulting
from the body's inability to cope with a particular heat load, and
includes heat cramps, heat exhaustion, heat syncope, and heat stroke.
(h) "Personal risk factors for heat illness" means factors such as
an individual's age, degree of acclimatization, health, water
consumption, alcohol consumption, caffeine consumption, and use of
prescription medications that affect the body's water retention or
other physiological responses to heat.
(i) "Shade" means complete blockage of direct sunlight. One
indicator that blockage is sufficient is when objects do not cast a
shadow in the area of blocked sunlight. Shade is not adequate when
heat in the area of shade defeats the purpose of shade, which is to
allow the body to cool.
(j) "Temperature" means the dry bulb temperature in degrees
Fahrenheit obtainable by using a thermometer to measure the outdoor
temperature. Except where otherwise indicated, the temperature
measurement shall be taken in an area where there is no shade. The
bulb or sensor of the thermometer shall be shielded, with the hand or
some other object, from direct contact by sunlight while taking the
measurement.
6721. (a) This chapter applies to the control of the risk of
occurrence of heat illness among agricultural employees. This chapter
is not intended to exclude the application of any section of Title 8
of the California Code of Regulations. This chapter applies to all
outdoor places of agricultural employment.
(b) (1) Each employee shall have continuous, ready access, as
close as possible and at a distance of no more than 10 feet from
where he or she is working, to fresh, pure, and suitably cool potable
drinking water meeting the requirements of Title 8 of the California
Code of Regulations, which does not have an unpalatable smell or
taste. The temperature of the water shall be 70 degrees or lower at
all times. The water shall be provided to the employee free of
charge.
(2) Each employee shall be provided with a canteen for his or her
individual use for the temporary storage and drinking of water, or
with a cup of at least 8-ounce but no more than 32-ounce capacity for
his or her individual use for drinking of water. The canteens or
cups shall be provided to the employees free of charge and replaced
or cleaned and sanitized after each work shift.
(3) Where drinking water is not plumbed or otherwise continuously
supplied, it shall be provided in a sufficient quantity at the
beginning of the work shift to provide at least one quart per
employee per hour for drinking for the entire shift. Water shall be
available at all times in sufficient quantities to provide at least
one quart per employee per hour for the remainder of the work shift.
(4) The frequent drinking of water, as described in this section,
shall be encouraged and permitted. At no time shall any employer
state or imply that an employee will face a negative consequence for
the frequent drinking of water or for stopping work to drink water.
Each employee shall be compensated for the time taken to access
water. For an employee working on a piece-rate basis, compensation
during the pay period in which time was taken to access water shall
be determined based upon the employee's average piece-rate wage.
(c) (1) The employer shall have and maintain one or more areas
with shade at all times while employees are present that is either
open to the air or provided with ventilation or cooling. The shaded
area shall be located as close as practicable to the areas where
employees are working, and in no event shall be at a distance greater
than 200 feet away from any employee. Canopies, umbrellas, and other
temporary structures or devices may be used to provide shade in
combination, if they completely block direct sunlight and the
temperature in the area of shade is significantly lower than the
ambient temperature outside of that area.
(2) The amount of shade provided shall be enough to accommodate
all of the employees on the shift at any time, so that the employees
can all sit fully in the shade without having to be in physical
contact with each other. An employer shall provide seating or ground
covering sufficient to prevent each of the employees from being in
contact with bare soil and to insulate each of the employees from the
heat of the ground.
(d) (1) Each employee shall be encouraged and permitted to take
rest breaks in the shade at any time when he or she feels the need to
do so to protect himself or herself from overheating. At no time
shall any employer state or imply that an employee will face any
negative consequence for taking a rest break in the shade or for
stopping work to take a rest break in the shade. An employee who
takes a rest break shall be encouraged and permitted to continue
resting in the shade as long as necessary to ensure that any signs or
symptoms of heat illness have resolved, but in no event for less
than 10 minutes in addition to the time needed to access the shade.
Rest in the shade shall be permitted at all times.
(2) The employer shall implement additional high-heat procedures
when the temperature equals or exceeds 80 degrees. These procedures
shall be in addition to, and not instead of, any other procedures
required by this chapter, and shall include all of the following:
(A) Requiring that each employee take a rest break at least every
two hours for a minimum of 15 minutes per break.
(B) Ensuring that effective communication by voice, observation,
or electronic means is maintained so that employees at the worksite
can immediately contact a supervisor when necessary. An electronic
device, such as a cell phone or text messaging device, may be used
for this purpose only if reception in the area is reliable.
(C) Using a buddy system, in which two workers are assigned to
observe each other throughout the workday or a portion of the
workday, to encourage each other to drink water and take rest breaks,
and to watch for signs of heat illness. Each worker shall be trained
to recognize the signs of heat illness in others.
(D) Supervisor observation of employees for decreases in alertness
and signs or symptoms of heat illness. If a supervisor observes a
decreases in alertness or signs or symptoms of heat illness, the
supervisor shall take action as required under subdivision (e).
(E) Reminding employees throughout the work shift to drink plenty
of water.
(F) Close supervision of a new employee for heat illness
prevention by a supervisor or designee for the first 14 days of the
employee's employment by the employer, unless the employer documents
at the time of hire that the employee has been doing similar outdoor
work for at least 10 of the past 30 days for four or more hours per
day.
(3) Each employee shall be compensated for rest breaks taken
pursuant to this section, and for rest periods or cool-down rest
periods established by any applicable regulation or order of the
Industrial Welfare Commission, the Division of Occupational Health
and Safety, or the Occupational Safety and Health Standards Board. An
employee working on a piece-rate basis shall be compensated at the
employee's average piece-rate wage during the pay period in which the
rest break, rest period, or cool-down rest period was taken.
(e) If a supervisor observes, or any employee reports, any signs
of heat illness in an employee, the supervisor shall take immediate
action to alleviate the symptoms, including providing the employee
with water, a paid rest break in the shade, and appropriate first
aid. The employee shall be provided access to medical aid consistent
with the procedures established pursuant to subdivision (f).
(f) (1) An employer shall establish procedures for the following:
(A) Responding to signs of possible heat illness, including how
emergency medical services will be provided.
(B) Contacting emergency medical services and, if necessary,
transporting employees to a place where they can be reached by an
emergency medical service provider.
(C) Ensuring that, in the event of an emergency, clear and precise
directions to the worksite are provided to emergency responders.
(2) The procedures shall include designating a person to be
available to ensure that emergency procedures are invoked when
appropriate.
(3) The procedures shall be deemed insufficient, and therefore in
violation of this subdivision, if either of the following occurs:
(A) An employee presents signs of heat illness and is not
transported, commencing within five minutes of the onset of the heat
stress signs, by air-conditioned automobile or ambulance to the
nearest appropriate emergency medical service provider for
appropriate medical care.
(B) An employee presents suspected signs of heat illness and is
sent home instead of being given onsite first aid and being
transported by air-conditioned automobile or ambulance to the nearest
appropriate emergency medical service provider and assessed and
authorized for discharge by licensed medical personnel.
(g) (1) An employee shall not begin outdoor work unless the
employee has received the training required by this paragraph.
Effective training in the following topics shall be provided to each
supervisory and nonsupervisory employee:
(A) The requirements of this section, including the employer's
responsibility to provide water, shade, rest breaks, and access to
medical aid as set forth in this section, and the prohibition on
retaliation as set forth in Section 6723.
(B) The employer's procedures established pursuant to subdivision
(f).
(C) The environmental and personal risk factors for heat illness,
as well as the added burden of heat load on the body caused by
exertion, clothing, and personal protective equipment.
(D) The importance of frequent consumption of small quantities of
water, up to four cups per hour, when the work environment is hot and
employees are likely to be sweating more than usual in the
performance of their duties.
(E) The importance of acclimatization.
(F) The different types of heat illness and the common signs and
symptoms of heat illness.
(G) The importance to each employee of immediately reporting to
the employer, directly or through the employee's supervisor, symptoms
or signs of heat illness in himself or herself, or in coworkers.
(2) A supervisor shall not be assigned to supervise employees
unless the supervisor has received the training required by this
paragraph. In addition to the training required by paragraph (1),
effective training on the following topics shall be provided to each
supervisory employee:
(A) The procedures the supervisor is to follow to implement the
applicable provisions of this section.
(B) The procedures the supervisor is to follow when an employee
exhibits symptoms consistent with possible heat illness, including
emergency response procedures.
(C) How to monitor weather reports and how to respond to hot
weather advisories.
6722. (a) (1) An employer shall maintain written procedures for
complying with the requirements of this chapter. The written
procedures shall be made available within 24 hours of a request made
by a representative of the division, an employee, or a representative
of an employee.
(2) Procedures for complying with the requirements of this chapter
may be integrated into the employer's written Injury and Illness
Prevention Program, or maintained in a separate document.
(b) (1) An employer shall certify by January 31 of each year, or
on the first day of operation in any calendar year in which an
employer begins an employment relationship after January 31, that the
employer has adopted written procedures for complying with the
requirements of this chapter, and has acquired and made available to
the appropriate persons all materials and equipment necessary for
providing employees with water, shade, and training in the prevention
of heat illness. This certification shall be in writing, signed, and
dated, and shall be made available within 24 hours of a request made
by a representative of the division, an employee, or a
representative of an employee.
(2) If an employer is found not to have adopted written procedures
for complying with the requirements of this chapter following
certification, or is found to lack any of the materials and equipment
necessary for providing employees with water, shade, and training in
the prevention of heat illness following certification, there shall
be a rebuttable presumption that the certification was false at the
time it was made, and the employer shall be subject to penalties for
fraud.
(c) Prior to the commencement of outdoor work at any worksite, the
employer shall post in a manner readily visible and legible a sign
setting forth the identity of the farm operator, the identity of the
employer, the date, the number of employees of that employer in each
crew at that worksite on that date, and the location at which the
written procedures for complying with this chapter are maintained.
6723. (a) An employee shall not be discharged or penalized in any
way for drinking water, taking a break to get water, taking a rest
break in the shade, or taking any other action on behalf of himself
or herself or his or her coworkers that is reasonably calculated to
prevent heat illness.
(b) An employee shall not be discharged or penalized in any way
for taking action to secure his or her employer's compliance with the
requirements of this chapter, including directly or indirectly
communicating with the employer about the requirements of this
chapter or the prevention of heat illness, reporting a violation of
this chapter or otherwise communicating with any person or entity
about the employer's compliance with the requirements of this
section, or participating in any way in any investigation or
proceeding to enforce the requirements of this chapter.
6724. (a) (1) This chapter shall be enforced by the division.
(2) The division shall treat a complaint alleging violation of
this chapter, other than a complaint alleging a violation of only
Section 6722, as a complaint charging a serious violation within the
meaning of Section 6309, and shall investigate all of these
complaints through onsite inspection.
(3) During an onsite inspection of an outdoor place of
agricultural employment, the division shall inform all employees of
the prohibition on retaliation set forth in Section 6723. The
division shall provide employees with written materials, in the
language or languages spoken by the employees, setting forth a clear
and concise summary of the requirements of this chapter and a means
of contacting the division if the employer subsequently commits a
retaliatory act or other violation of this chapter.
(4) An employer shall be designated as a high hazardous industry
employer within the meaning of Section 6314.1 if the division
receives a complaint against the employer from an employee or an
employee's representative alleging a violation of this chapter,
unless the division investigates the complaint within 24 hours and
finds it to be without foundation, or the division issues a citation
against the employer for a violation of this chapter, unless the
citation is withdrawn in its entirety.
(5) The division shall require an employer to immediately correct
any failure to provide water or shade as required by this chapter,
regardless of the status of any related action or appeal.
(b) (1) An employee affected by an employer's failure to comply
with this chapter may bring an action for injunctive relief and is
entitled to recover in a civil action all damages caused by the
failure to comply, including interest on those damages, and civil
penalties as set forth in Section 6725. This remedy shall be in
addition to any other available remedy.
(2) An employee may bring a civil action pursuant to this
subdivision notwithstanding any action taken or not taken by the
division in relation to the employer's compliance with this chapter.
However, an employee may recover the civil penalties set forth in
Section 6725 only to the extent that the division has not imposed and
collected those penalties against the same employer for the same
alleged violation as of the date the civil action is filed.
(3) Fifty percent of the civil penalties recovered by the employee
in a civil action brought pursuant to this subdivision shall be
distributed to the division, with the remainder distributed to the
employee. The entire amount of any damages recovered by the employee
shall be distributed to the employee.
(4) An employer who is found in violation of this chapter in a
civil action brought pursuant to this subdivision shall be designated
a high hazardous industry employer within the meaning of Section
6314.1, and that designation shall be withdrawn only if the judgment
is vacated in its entirety.
(5) An employee who prevails in a civil action brought pursuant to
this subdivision is entitled to an award of reasonable attorney's
fees and costs of suit, including expert witness fees.
(c) An enforcement action or proceeding may be brought pursuant to
this section against all agricultural entities involved in the
farming operation, including the farm operator. For purposes of this
section, the acts or omissions of an agricultural employer shall be
imputed to the farm operator on the real property used in whose
farming operation the agricultural employer was acting at the time of
the alleged violation of this chapter and that farm operator shall
be jointly and severally liable with and to the same extent as the
agricultural employer.
(d) A signed statement obtained by the division from an employee
that is made under penalty of perjury is admissible in an
administrative enforcement proceeding brought pursuant to this
section.
6725. (a) For a violation of Section 6721 or 6723, the civil
penalties shall be as follows:
(1) For each day on which the violation existed while one or more
employees were working and the temperature did not exceed 80 degrees,
the penalty shall be the product of five hundred dollars ($500)
multiplied by the number of employees on the work crew at the time of
the violation.
(2) For each day on which the violation existed while one or more
employees were working and the temperature exceeded 80 degrees but
did not exceed 90 degrees, the penalty shall be the product of two
thousand dollars ($2,000) multiplied by the number of employees on
the work crew at the time of the violation.
(3) For each day on which the violation existed while one or more
employees were working and the temperature exceeded 90 degrees but
did not exceed 100 degrees, the penalty shall be the product of five
thousand dollars ($5,000) multiplied by the number of employees on
the work crew at the time of the violation.
(4) For each day on which the violation existed while one or more
employees were working and the temperature exceeded 100 degrees, the
penalty shall be the product of ten thousand dollars ($10,000)
multiplied by the number of employees on the work crew at the time of
the violation.
(5) Notwithstanding paragraphs (1) to (4), inclusive, if the
violation existed during any work shift when any employee suffered
heat illness, the penalty shall be not less than fifty thousand
dollars ($50,000).
(6) Notwithstanding paragraphs (1) to (4), inclusive, no penalty
shall exceed two hundred thousand dollars ($200,000).
(b) (1) Except as otherwise provided in paragraph (2), for a
violation of Section 6722, civil penalties shall be imposed in the
amount of five hundred dollars ($500) multiplied by the number of
days the violation existed while employees were working.
(2) The penalty described in paragraph (1) shall not exceed ten
thousand dollars ($10,000).
(c) (1) A civil penalty imposed and calculated pursuant to
subdivision (a) or (b) may be reduced by as much as 50 percent, if
the violation did not exist during a work shift when an employee
suffered heat illness. A reduction shall be based on the facts and
circumstances of the violation, including the following
considerations:
(A) The culpability of the employer.
(B) Whether an employee lacked access to water or shade at any
time while the violation existed.
(C) The size, sophistication, and financial strength of the
employer.
(D) The employer compliance history related to heat illness.
(E) The degree of injury caused by the employer's current or past
violations.
(F) Any efforts by an employee or other person to secure the
employer's compliance through means other than litigation.
(G) Any expenses incurred by employees, the division, and others
in investigating the employer's compliance.
(2) The employer has the burden of proving the existence of facts
justifying a reduction of the penalty pursuant to this subdivision.
SEC. 4. Section 192.1 is added to the Penal Code, to read:
192.1. (a) For the purpose of Section 192, directing an
agricultural employee to perform , or supervising an
agricultural employee in the performance of, outdoor work
without providing the employee with both continuous, ready access to
an area of shade sufficient to allow the body to cool and potable
water that is suitably cool and available in quantities sufficient to
allow the employee to drink one quart of water per hour throughout
the employee's work shift , where the employee dies as the
proximate result of heat-related causes, shall be deemed to be the
commission of an unlawful act, not amounting to a felony, or the
commission of a lawful act that might produce death, in an unlawful
manner, or without due caution and circumspection. may
constitute the commission of an unlawful act, not amounting to a
felony, or the commission of a lawful act that might produce death,
in an unlawful manner, or without due caution and circumspection.
This subdivision does not narrow or limit in any way the
definition of involuntary manslaughter that would exist without
regard to this subdivision, or limit or prevent prosecution pursuant
to any other applicable law.
(b) (1) If a corporation or natural person is convicted of the
crime described in subdivision (a), the court , in imposing
restitution pursuant to subdivision (f) of
Section 1202.4, shall require the defendant to
make restitution to the immediate surviving family of the deceased
employee, to be shared equally, in an amount between
up to one million dollars ($1,000,000)
and one million five hundred thousand dollars ($1,500,000),
inclusive. The court may impose restitution in an amount less than
one million dollars ($1,000,000), if necessary to comply with
constitutional requirements. The restitution described in this
subdivision shall be in addition to any other restitution required by
Section 1202.4 or 1203.1, or any other applicable provision of law.
The restitution order shall be enforceable as if the order were a
civil judgment in compensation for the lost future
earnings of the deceased employee .
(2) "Immediate surviving family" means a spouse, child, stepchild,
brother, stepbrother, sister, stepsister, mother, stepmother,
father, or stepfather of the decedent.
SEC. 5. The provisions of this section are severable. If any
provision of this act or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
SEC. 6. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.