BILL ANALYSIS �
AB 2346
Page 1
Date of Hearing: May 25, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 2346 (Butler) - As Amended: April 25, 2012
Policy Committee: Labor and
Employment Vote: 5-2
Public Safety 4-2
Urgency: No State Mandated Local Program:
No Reimbursable: No
SUMMARY
This bill establishes the Farm Worker Safety Act of 2012 (FWSA)
related to heat illness and outdoor places in agricultural
employment, including establishing civil liability and criminal
restitution for surviving family members, as specified.
Specifically, this bill:
1)Requires each agricultural employee to have a continuous,
ready access (no more than 10 from where the employee is
working) to fresh, pure, and suitably cool potable drinking
water meeting the requirements under current law related to
heat illness, as specified. Further requires the water to be
free at a temperature of 70 degrees or lower at all times.
2)Requires the employer to maintain one or more areas with shade
at all times while agricultural employees are present that is
either open to the air or provided with ventilation or
cooling. Further requires the shaded are to be located at a
distance no greater than 200 feet away from any employee.
FISCAL EFFECT
1)GF costs, likely between $5 and $7 million, to implement this
measure. These costs are largely attributed to additional
staff in several divisions within the Department of Industrial
Relations (DIR) to conduct policy implementation (i.e.,
training), complaint investigation, and any appeals as a
result of this measure. It is unclear how this measure would
interact with current heat-related illness regulations being
implemented and enforced by DIR.
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2)Unknown, potentially significant state trial court costs, to
the extent creating a new right to legal action requires
additional court time.
SUMMARY CONTINUED
1)Requires the employer to implement additional specified
high-heat procedures when the temperature equals or exceeds 80
degrees. Further specifies these procedures are in addition to
the water and shade procedures specified above.
2)Requires each employee to be compensated for water or rest
breaks pursuant to the provisions above. Further requires
employers to establish specified procedures if he or she
observes or reports any signs of heat illness in an employee.
3)Deems the heat procedures insufficient and in violation of the
FWSA, 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
heat stress signs, by air-conditioned automobile/ambulance
to the nearest emergency medical service provider.
b) An employee presents signs of heat illness and is sent
home instead of being given onsite first aid and being
transported as specified above.
4)Prohibits an agricultural worker from working outdoors unless
he or she has received specialized training detailed in this
measure. Further prohibits a supervisor from supervising
employees unless he or she has received the training specified
above, with additions relevant to a supervisory role.
5)Requires an employer to maintain written procedures for
complying with the requirements of the FWSA. Further requires
the employer to certify by January 31 of each year, or on the
first day of operation in any calendar year, that he or she
has adopted these written procedures, as specified.
6)Prohibits an employee from being 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
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is reasonably calculated to prevent heat illness.
7)Establishes specified enforcement methods and protocols for
Division of Occupational Safety and Health (DOSH) related to
the FWSA, including investigating complaints via onsite
inspection.
8)Authorizes an employee affected by an employer's failure to
comply with the FWSA to bring an action of injunctive relief
and is entitled to recover civil damages (including interest)
caused by the failure to comply.
9)Authorizes the employee to bring a civil action and recover
civil penalties only to the extent that DOSH has not imposed
or collected those penalties against the same employer for the
same alleged violation as of the date of the civil action.
Further requires 50% of the penalties to remain with DOSH and
the remaining 50% to be distributed to the employee.
10)Establishes the following civil penalties, but prohibits a
penalty from exceeding $200,000:
a) $500 multiplied by the number of employees on the work
crew at the time of the violation for each day on which the
violation existed while one or more employees were working
and the temperature did not exceed 80 degrees
b) $2,000 multiplied by the number of employees on the work
crew at the time of the violation 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.
c) $5,000 multiplied by the number of employees on the work
crew at the time of the violation 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.
d) $10,000 multiplied by the number of employees on the
work crew at the time of the violation for each day on
which the violation existed while one or more employees
were working and the temperature exceeded 100 degrees.
11)Specifies, in a supervisory capacity of an agricultural
employee, that a violation of specified requirements of the
FWSA may constitute a commission of an unlawful act, not
amounting to a felony, or the commission of a lawful act that
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might produce death in an unlawful manner. Further specifies
this provision does not narrow or limit the definition of
involuntary manslaughter, as specified.
12)Requires a defendant to make restitution to the immediate
surviving family or the deceased employee in an amount up to
$1 million, as specified.
COMMENTS
1)Purpose . According to information provided by the United
Farmworkers of America (UFWA), the sponsor of this bill, 16
farmworkers have died after the state passed heat illness
legislation in 2005. The UFWA further states: "Last summer,
�we] filed more than 75 serious heat illness complaints with
the Occupational Safety and Health Administration (Cal-OSHA).
Cal-OSHA issued heat citations for only three of those
complaints. And for at least 2/3 of those complaints - more
than 50 - Cal-OSHA did not even conduct an inspection."
The author states: "As evidenced from the fact that
farmworkers have died from heat illness since the adoption of
the heat regulations, including during Governor Brown's
administration, the state is unable to enforce the existing
heat regulation. From its own files, in 2009, �DOSH] failed
to issue citations in more than 120 instances in which its
inspections determined that serious problems exist. In that
same year, �DOSH] repeatedly withdrew citations and reduced
fines, even for violations so egregious that it temporarily
shut down the employer's operations."
This bill establishes the FWSA related to heat illness and
outdoor places in agricultural employment, including
establishing civil liability and criminal restitution for
surviving family members, as specified.
2)Background . Following a series of heat-related deaths in the
agricultural industry, DOSH promulgated emergency outdoor heat
regulations, which became effective in August 2005, and
permanent regulations, which became effective in July 2006.
The regulation requires all employers with outdoor worksites
to provide heat illness prevention training to their
employees, provide adequate amounts of fresh water and access
to shade, and develop written procedures for complying with
the regulation.
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Despite these regulations, continues to be a significant
number of occupational related deaths due to heat illnesses.
This has led some worker advocates to challenge the heat
illness regulation as inadequate or insufficient. In response,
DOSH has attempted to modify the standards, but proposed
regulations have been criticized by both employer and worker
representatives for different reasons. As a result, revised
regulations have yet to be approved.
3)DOSH 2010 revised heat illness regulations . In November 2010,
revised heat illness regulations went into effect.
Specifically, the regulations require shade to be present to
accommodate 25% of the employees on the shift at any time when
the temperature exceeds 85 degrees.
The revised regulations also establish high-heat procedures
for the following five industries when temperatures reach 95
degrees: agriculture, construction, landscaping, oil and gas
extraction, and transportation of agricultural products,
construction material or other heavy material. These changes
also include observing employees, closely supervising new
employees, and reminding all workers to drink water.
4)Data on the number of heat related illness inspections and
violations . According to information provided by the
Department of Industrial Relations (DIR), it conducted 3,269
heat illness inspections in 2011. Of these inspections, 811
violations were issued. DIR also reports that since 2005,
there have been a total of 32 worker fatalities due to
environmental heat exposure. Of these fatalities, 13 (40%)
occurred in the agricultural industry.
5)Opposition (including associations of growers and businesses)
argue that this bill is unnecessary and statute is not the
appropriate place to modify heat related regulations.
Specifically, the opponents state:
"Codifying heat illness requirements will strip the agency
�Cal-OSHA] of flexibility to address changed circumstances and
new information that may come to light in the future. Indeed,
the heat illness regulations were enhanced in 2010 to address
concerns that certain provisions required more specificity and
additional protections were necessary for outdoor employees in
five industries, including agriculture, in high heat
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conditions. This process was inclusive and considerate of the
experience gained by state regulators, employers and employee
representatives under the existing regulation. AB 2346 would
shut down this experience-informed, stakeholder-inclusive and
adaptable process and impose a dramatically different heat
illness statute on agriculture that is unreasonable,
unworkable, uneconomical, and punitive."
6)Previous related legislation . SB 477 (Florez) was similar to
this measure with regard to procedures; it did not, however,
establish criminal and civil sanctions or establish a right to
sue provision for farmworkers. This bill was held on this
committee's Suspense File in August 2010.
Analysis Prepared by : Kimberly Rodriguez / APPR. / (916)
319-2081