BILL ANALYSIS �
AB 2346
Page 1
Date of Hearing: April 24, 2012
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2346 (Butler) - As Amended: April 9, 2012
As Proposed to be Amended in Committee
SUMMARY : Enacts the Farm Worker Safety Act related to heat
illness and outdoor places of agricultural employment, including
criminal liability and requiring restitution to the surviving
family of the decedent. Specifically, this bill :
1)Provides that for purposes of the Penal Code provision
defining the different types of manslaughter, directing an
agricultural employee to perform, or supervising an
agricultural employee in the performance of, outdoor work
without specified safeguards relating to shade and water, 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, without due and
circumspection."
2)Clarifies that this provision does not narrow or limit in any
way the definition of "involuntary manslaughter", or limit or
prevent prosecution under any other applicable law.
3)States that this provision does not narrow or limit in any way
the definition of involuntary manslaughter.
4)Provides that if a corporation or person is convicted of such
a crime, the court's restitution order shall require the
defendant to make restitution to the immediate surviving
family of the deceased, to be shared equally, in an amount up
to $1 million in compensation for lost future earnings.
5)Provides that the requirements of this bill apply to all
outdoor places of agricultural employment.
6)Enacts specified requirements with respect to drinking water,
including continuous, ready access to water and providing each
employee with a canteen or a cup for his or her individual
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use.
7)Enacts specified requirements with respect to shade, including
maintaining 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, and enough to
accommodate all of the employees on the shift at any time.
8)Provides that agricultural employees shall be encouraged and
permitted to frequently drink water and take rest breaks in
the shade.
9)Requires the employer to implement additional high-heat
procedures when the temperature equals or exceeds 80 degrees,
as specified, including 15-minute breaks every two hours and
the use of a "buddy" system.
10)Provides that an employee shall be compensated for rest
breaks, rest periods, or cool-down rest periods taken. 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 was taken.
11)Requires a supervisor, if he or she observes, or any employee
reports, any signs of heat illness in an employee, to take
immediate action to alleviate the symptoms, as specified.
12)Requires an employer to establish emergency response
procedures, as specified.
13)Establishes specific training requirements for both employees
and supervisors.
14)Prohibits an employee from being discharged or penalized for
taking specified actions, including drinking water, taking a
break, or other actions reasonably calculated to prevent heat
illness.
15)Requires the employer to maintain written procedure,
certification and posting requirements relating to heat
illness prevention, as specified.
16)Establishes civil penalties for violations of the
requirements as follows:
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a) For each day on which the violation existed and the
temperature did not exceed 80 degrees, $500 multiplied by
the number of employees on the work crew at the time of the
violation.
b) For each day on which the violation existed and the
temperature did not exceed 90 degrees, $2,000 multiplied by
the number of employees on the work crew at the time of the
violation.
c) For each day on which the violation existed and the
temperature did not exceed 100 degrees, $5,000 multiplied
by the number of employees on the work crew at the time of
the violation.
d) For each day on which the violation existed and the
temperature exceeded 100 degrees, $10,000 multiplied by the
number of employees on the work crew at the time of the
violation.
e) Where a violation existed and an employee suffered heat
illness, the penalty shall be not less than $50,000.
f) No penalty shall exceed $200,000.
g) The civil penalty may be reduced by as much as 50
percent if the violation did not exist during a work period
where an employee suffered heat illness, based on specified
considerations.
17)Establishes certain enforcement methods and protocols for the
Division of Occupational Safety and Health (DOSH), as
specified.
18)Authorizes an employee affected by an employer's failure to
comply with these requirements to bring a civil action for
injunctive relief and damages, including civil penalties.
However, 50 percent of any civil penalties recovered by an
employee shall be distributed to DOSH.
19)Provides that an enforcement action or proceeding may be
brought against all agricultural entities involved in the
farming operation, including the farm operator. The acts or
omissions of an agricultural employer shall be imputed to the
farm operator on the real property used in whose farming
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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.
20)Contains a severability clause.
EXISTING LAW :
1)Defines "involuntary manslaughter" as the unlawful killing of
a human being without malice and in the commission of an
unlawful act, not amounting to felony; or in the commission of
a lawful act which might produce death, in an unlawful manner,
or without due caution and circumspection, but not to acts
committed in the driving of a vehicle. �Penal Code Section
192(b).]
2)Provides that involuntary manslaughter is punishable by
imprisonment pursuant to subdivision (h) of Section 1170 for
two, three, or four years. �Penal Code Section 193(b).]
3)States it is the unequivocal intention of the People of the
State of California that all persons who suffer losses as a
result of criminal activity shall have the right to
restitution from the persons convicted of the crimes for
losses they suffer. Restitution shall be ordered from the
convicted persons in every case, regardless of the sentence or
disposition imposed, in which a crime victim suffers a loss,
unless compelling and extraordinary reasons exist to the
contrary. �Cal. Const., Art. I, sec. 28(b).]
4)Requires full victim restitution for economic losses
determined by the court. �Penal Code Section 1202.4(f).]
5)States that economic losses include, but are not limited to,
the following: full or partial payment for the value of
stolen or damaged property; medical expenses; mental health
counseling expenses; wages or profits lost due to injury
incurred by the victim, and if the victim is a minor, wages or
profits lost by the minor's parent, parents, guardian, or
guardians, while caring for the injured minor; wages or
profits lost by the victim, and if the victim is a minor,
wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution; noneconomic losses,
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including, but not limited to, psychological harm, for felony
violations of Section 288; interest at the rate of 10 percent
per annum; actual and reasonable attorney's fees and other
collection costs; relocation expenses incurred by an adult
victim; expenses to install or increase residential security;
expenses to retrofit a residence or vehicle, or both, to make
the residence accessible to or the vehicle operational by the
victim, where the victim suffers permanent disability as a
direct result of the crime; and expenses to monitor and repair
the credit report of a victim of identity theft. �Penal Code
Section 1202.4(f).]
6)Defines a "victim" for purposes of restitution, as including
any of the following:
a) The immediate surviving family of the actual victim;
b) Any corporation, business trust, estate, trust,
partnership, association, joint venture, government,
governmental subdivision, agency, or instrumentality, or
any other legal or commercial entity when that entity is a
direct victim of a crime; and
c) Any person who has sustained economic loss as the result
of a crime and who satisfies any of the following
conditions:
i) At the time of the crime was the parent,
grandparent, sibling, spouse, child, or grandchild of the
victim;
ii) At the time of the crime was living in the household
of the victim;
iii) At the time of the crime was a person who had
previously lived in the household of the victim for a
period of not less than two years in a relationship
substantially similar to a relationship listed above;
iv) Is another family member of the victim, including,
but not limited to, the victim's fianc� or fianc�e, and
who witnessed the crime; or
v) Is the primary caretaker of a minor victim. �Penal
Code Section 1202.4(k).]
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FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "California has
established strict penalties for individuals who fail to
provide domesticated animals with adequate amounts of water
and protection from the elements. California's law protecting
farm workers is toothless on what happens when these two basic
protections are denied to human beings in our fertile
agricultural fields."
2)Restitution Provision : In People v. Giordano (2007) 42
Cal.4th 644, the Supreme Court considered the trial court's
award of restitution for support of the decedent's wife. The
Court granted review to consider whether Penal Code Section
1202.4 authorizes the court to require a convicted defendant
to compensate for future economic losses attributable to the
death. The Court held that the surviving spouse of a decedent
may receive victim restitution for the loss of economic
support in the amount a spouse would have earned.
Because the case involves future support, the Court's analysis
provides clear direction for this bill. The Court provided
guidance as to how a trial court should calculate a
restitution order for lost future earnings. The Court held
such an order should based on evidence regarding certain
factors. The Court described the analysis:
"Factors relevant to that determination will necessarily depend
on the particular circumstances before the court. Generally,
the calculation of the loss of support may be informed by such
factors as the earning history of the deceased spouse, the age
of the survivor and decedent, and the degree to which the
decedent's income provided support to the survivor's
household. These guideposts are not provided as an exhaustive
list. Naturally the court's discretion will be guided by the
particular factors at play in each individual claim. (Id. at
p. 665.)
This bill provides for restitution to the immediate surviving
family of a deceased agricultural employee to compensate for
lost future earnings in an amount up to $1 million. Although
a numerical figure is mentioned, the language of this bill
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establishes a statutory maximum, and not a mandatory minimum.
Consistent with Giordano, supra, 42 Cal.4th 644, it maintains
judicial discretion in calculating that order.
However, to the extent that a situation may arise where a
calculation of the decedent's future earnings exceeds $1
million, the provision of this bill imposing a statutory
maximum on the award of lost future earnings might conflict
with Penal Code Section 1202.4(f) requiring full victim
restitution. Moreover, since full restitution is already
required under current law, the restitution provision of this
bill seems unnecessary.
3)Involuntary Manslaughter : The statutory definition of
involuntary manslaughter limits the offense, other than for
acts committed while driving a vehicle, to the unlawful
killing of a human being without malice "in the commission of
an unlawful act, not amounting to felony; or in the commission
of a lawful act which might produce death, in an unlawful
manner, or without due caution and circumspection." �Penal
Code Section 192(b).] Involuntary manslaughter based on "an
unlawful act, not amounting to felony" -- a killing resulting
from the commission of a misdemeanor -- requires proof not
only that the defendant acted with general criminal intent but
also that the predicate misdemeanor was dangerous to human
life under the circumstances of its commission. �People v.
Cox (2000) 23 Cal.4th 665, 667, 675-676]; People v. Wells
(1996) 12 Cal.4th 979, 982.] Involuntary manslaughter based
on the commission of a lawful act that might produce death
"without due caution and circumspection" requires proof of
criminal negligence, that is "aggravated, culpable, gross, or
reckless"" conduct that creates a high risk of death or great
bodily injury and that evidences a disregard for human life or
indifference to the consequences of the conduct. �People v.
Penny (1955) 44 Cal.2d 861, 879; People v. Evers (1992) 10
Cal.App.4th 588, 596.]
4)Argument in Support : According to the United Farm Workers of
America , (the sponsor of this bill), "At least 16 farm workers
have died since the state issued an emergency regulation
related to heat illness in 2005. Since all of these deaths
were preventable, it's clear that the regulation and its
enforcement are ineffective. ?
"AB 2346 assures that agricultural employers provide water and
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shade to their employees. It creates a private right of
action so that farm workers can do what the state fails to do.
And, it ensures that growers, who have hired farm labor
contractors, can be held liable for heat-illness violations.
Finally, �this bill] also requires meaningful penalties for
those responsible for heat-related illnesses and deaths.
"AB 2346 is limited to protecting farm workers from preventable
heat death and illness. This limited proposal is minimal
protection when compared to the penal code sections
authorizing punishment as a misdemeanor or felony for every
person who fails to provide any animal with proper food,
drink, shelter or protection from the weather. ?
"Unfortunately, heat-related deaths are a reminder that
agriculture is one of the few industries in this state and
country where a person can be worked to death. Without �this
bill], protecting farm workers is simply a good intention."
5)Argument in Opposition : According to the California Chamber
of Commerce , "The enforcement provisions combined with fines
and penalties are extraordinarily high and unwarranted. The
opportunities for litigation are almost limitless; from
private rights of action and enormous awards of damages,
bounty hunter provisions, joint liabilities, enormous
penalties and restitution of $1,000,000 or more. State
regulators have effective enforcement authority and statutory
provisions for fines, penalties and due process for employers
which should be respected as the appropriate authority for
heat illness prevention enforcement.
6)Prior Legislation : SB 477 (Florez), of the 2009-10
Legislative Session, would have codified and strengthened the
then-existing regulations that provide for the prevention of
heat illness of employees. SB 477 was held in the Assembly
Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
United Farm Workers of America (Sponsor)
California Employment Lawyers Association
California Labor Federation
California National Organization for Women
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Food Project
Public Counsel Law Center
Opposition
Agricultural Council of California
Alliance of Western Milk Producers
American Pistachio Growers
California Association of Nurseries and Garden Centers
California Bean Shippers Association
California Chamber of Commerce
California Citrus Mutual
California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Grain and Feed Association
California Grape and Tree Fruit League
California Pear Growers Association
California Seed Association
California State Floral Association
California Tomato Growers Association
California Women for Agriculture
Grower-Shipper Association of Central California
Grower-Shipper Association of Santa Barbara
Nisei Farmers League
Pacific Egg and Poultry Association
Ventura County Agricultural Association
Western Agricultural Processors Association
Western Growers Association
Western United Dairymen
Wine Institute
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744