BILL ANALYSIS �
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: June 27, 2012 2011-2012 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: AB 2346
Author: Butler
As Introduced/Amended: April 25, 2012
SUBJECT
Agricultural employee safety: heat-related illness.
KEY ISSUE
Should the Legislature codify and expand heat illness prevention
regulations for the agricultural industry?
PURPOSE
To codify and expand heat illness regulation for the
agricultural industry, as well as create an additional private
right of action to assist in enforcement.
ANALYSIS
Existing law provides the California Occupational Safety and
Health Act of 1973 for the purpose of assuring safe and
healthful working conditions for all California working men and
women by authorizing the enforcement of effective standards,
assisting and encouraging employers to maintain safe and
healthful working conditions, and by providing for research,
information, education, training, and enforcement in the field
of occupational safety and health.
(Labor Code �6300)
Existing law provides that the Division of Occupational Safety
and Health (DOSH) may, among other things, require the
performance of any act which the protection of the life and
safety of the employees in places of employment reasonably
demands. (Labor Code �6308)
Existing law establishes a program for targeting employers in
high hazardous industries with the highest incidences of
preventable occupational injuries and illnesses and workers'
compensation losses. The Division is required to establish
procedures for ensuring that the highest hazard employers are
inspected on a priority basis. (Labor Code �6314.1)
Existing law requires every employer to create a written Injury
and Illness Prevention Program (IIPP) that, among other things,
identifies hazards and ensures employees receive appropriate
training on the occupational hazards present in the workplace.
(Labor Code �6401.7)
Existing law provides a civil penalty of up to $7,000 for each
non-serious violation of an occupational safety order, or up to
$25,000 for each serious violation.
(Labor Code �� 6427 and 6428)
Existing law provides that knowingly, negligently, or repeatedly
violating an order of the Division of Occupational Safety and
Health, or inducing someone to do so, is a misdemeanor that
entails the following penalties:
a) For knowingly or negligently violating a standard, six
months in prison, a civil penalty of $5,000 to $15,000, or
both;
b) For repeatedly violating a standard, one year in prison,
a civil penalty of $15,000 to $150,000, or both.
(Labor Code �6423)
Existing law provides that any employer that willfully violates
an occupational safety order, that employer can face:
a) For a straight violation, a civil penalty of up to
$70,000, but no less than $5,000 for each willful
violation;
b) If the violation leads to a serious injury or death, a
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county jail or state prison sentence of one to three years
and a fine of up to $250,000, or both. If the defendant is
a corporation or limited liability corporation (LLC), the
fee must range between $500,000 and $2.5 million;
c) If the violation leads to a serious injury or death, for
a second violation in 7 years, 2 to 4 years and a fine of
up to $250,000, or both. For a corporation or limited
liability corporation (LLC), the fee must range between $1
million and $3.5 million.
(Labor Code �� 6425 and 6429)
Existing law provides a private right of action through the
Private Attorney General Act (PAGA) for violations of DOSH
regulations or orders if DOSH investigates and fails to cite a
violation of the law. If the Court finds DOSH should have
issued a citation and orders DOSH to do so, a PAGA civil action
cannot move forward. (Labor Code �2699.3)
Existing DOSH Regulations applies to all places of outdoor
employment , specifically agricultural, construction,
landscaping, oil and gas extraction, and the movement of goods.
These regulations require:
a) Employees must have access to potable drinking water.
Where drinking water is not plumbed or otherwise
continuously supplied, it shall be provided in sufficient
quantity at the beginning of the work shift to provide one
quart per employee per hour for drinking for the entire
shift.
b) Employers may begin the shift with smaller quantities of
water if they have effective procedures for replenishment
during the shift as needed to allow employees to drink one
quart or more per hour. The frequent drinking of water must
be encouraged.
c) That shade must be present whenever the temperature is
85 degrees or more, and that the shade must be sufficient
to accommodate 25% of the employees on the shift at any
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time, so that they can sit in a normal posture fully in the
shade without having to be in physical contact with each
other. The shaded area shall be located as close as
practicable to the areas where employees are working;
d) Employees shall be allowed and encouraged to take a
cool-down rest in the shade for a period of no less than
five minutes at a time when they feel the need to do so to
protect themselves from overheating. Such access to shade
shall be permitted at all times.
e) The employer shall implement high-heat procedures when
the temperature equals or exceeds 95 degrees. This
includes improving ways of communicating between employees
and supervisors, requiring observation of employees for
heat illness, and the encouraging of water consumption.
f) The employer must provide appropriate training to
agricultural workers on the risk of heat illness and
appropriate emergency response to heat illness when it
occurs.
This bill would create the following obligations only for
outdoor places of agricultural employment:
1)Enacts the following requirements with respect to drinking
water:
a) Each employee shall have continuous, ready access, as
close as possible and at a distance of no more than ten
feet from where they are working , to fresh water at 70
degrees or less at all times.
b) Each employee shall be provided with a canteen or a cup
for his or her individual use for the temporary storage and
drinking of this water, as specified. If using a cup, the
cup must be between 8 ounces and 32 ounces .
c) Where drinking water is not plumbed or otherwise
continuously supplied, it shall be provided in sufficient
quantity at the beginning of the work shift to provide at
least one quart per employee per hour for drinking for the
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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.
d) The frequent drinking of water shall be encouraged and
permitted. At no time shall any employer state or imply
that any employee will face any negative consequence for
the frequent drinking of water or for stopping work for
such drinking of water.
e) Each employee shall be compensated for the time taken to
access water. For an employee working on a piece-rate
basis, such compensation shall be determined based upon
their average piece-rate wage during the pay period in
which time was taken to access water.
2)Enacts the following requirements with respect to shade:
a) 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, as specified. The shaded area shall be as close
as practicable to the areas where employees are working,
and in no event shall be at a distance of greater than 200
feet away from any employee.
b) 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 heating 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.
c) Each employee shall be encouraged and permitted to take
rest breaks in the shade at any time when they feel the
need to do so to protect themselves from overheating, and
at no time shall any employer state or imply that any
employee will face any negative consequence for taking a
rest break in the shade, as specified.
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3)Provides that 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.
4)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.
5)Requires a supervisor, if he or she observes, or any employee
reports, any signs of heat illness in an employer, to take
immediate action to alleviate the symptoms, as specified.
6)Requires an employer to establish emergency response
procedures, as specified.
7)Establishes specific training requirements for employees and
supervisors.
8)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.
This bill would also:
a) Requires the employer to maintain written procedures for
complying with the above requirements, and also requires
the employer to make the written procedures available
within 24 hours of a request from DOSH, an employee, or an
employee's representative;
b) Requires the employer to certify the written procedures
annually, and if after the certification, the employer
lacks any of the material or equipment following the
certification, there is a rebuttable presumption that the
employer engaged in fraud;
c) Requires that, 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
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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 heat illness requirements are maintained. Civil
penalties for violations of these requirements shall be
$500 per day of violation when employees were working, not
to exceed $10,000.
This bill would provide the following for DOSH enforcement:
a) All violations of these provision, other than the
signage requirement listed above, must be treated as a
serious violation of DOSH regulations and must be
investigated with an on-site inspection;
b) An employer shall be designated a high hazardous
industry employer if DOSH receives a complaint, unless DOSH
investigates the complaint within 24 hours or the division
issues a citation.
This bill would create an additional private right of action for
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.
a) This private right of action may be brought
notwithstanding any action taken or not taken by the
Division. Recovery of penalties may only occur to the
extent DOSH has not imposed or collected these penalties
against the same employer for the same violations.
b) 50 percent of any civil penalties recovered by an
employee shall be distributed to DOSH.
c) An employer found to be in violation of the heat illness
requirements must be designated a high hazard industry
employer, unless the judgment is vacated in its entirety.
This bill would establish civil penalties for violations of
specified 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.
1)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
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.
This bill provides the following criminal penalties:
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a) Provides that directing an agricultural employee to
perform work without specified safeguards, where the
employee dies as a proximate result of heat-related causes,
shall be deemed to constitute a misdemeanor, as specified.
b) Provides that if a corporation or person is convicted of
such a crime, the court shall require the defendant to make
restitution to the immediate surviving family in an amount
of up to $1,000,000.
COMMENTS
1. Heat Illness and Occupational Fatalities in the Agricultural
Industry:
According to Bureau of Labor Statistics data, the industry
grouping that includes agriculture (Agriculture, forestry,
fishing, and hunting) has the highest fatality rate of all
industry groupings in California--- 11.5 fatalities per
100,000 fulltime employees. Transportation and utilities is
the next closest industry grouping, with 6.5 fatalities per
100,000 fulltime employees. Noting this high incidence of
fatalities in this industry grouping, and recognizing that
this industry grouping includes forestry and fishing, which
are also very dangerous professions, it is clear that working
in an agricultural setting comes with a fair amount of danger
in terms of the wellbeing of the worker.
When looking at what causes these fatalities, however, it
becomes clear that their causes are quite variable. From 2008
to 2011, there were 80 agricultural fatalities in California.
More than half (47) were due to being struck by or against
some kind of object or being caught in or between an object.
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Falls (8), electrocution (7), and vehicle-related fatalities
(6) were also high. Heat-related illness made up 4
fatalities, which is nearly the same number of fatalities as
drowning (3).
2. Specificity of Statute versus the Regulatory Process:
As was discussed above, AB 2346 provides far more specific
guidelines on complying with the law than existing
regulations, as well as expanding upon existing regulations.
This includes that the water must be 10 feet from where an
agricultural employee is working, the temperature of the water
(70 degrees), and that the shade must cover all of the
employees working on a shift at any particular time (as
opposed to the current requirement of 25%). As these
requirements would become a part of the statutory law, they
would supersede existing regulatory requirements.
When discussing bringing regulatory requirements into statute,
the Committee may wish to consider what is gained and what is
lost by doing so. On one hand, bringing specific requirements
into statute will provide specificity for employers,
employees, and regulators on what is and is not safe and
appropriate. On the other hand, one loses the advantages of
the regulatory process. The most recent heat illness
regulation was proposed and passed in 4 months, which is far
faster than the legislative process. Additionally, the
regulation process combines the feedback of all of the
impacted parties: the regulator, the regulated employer, and
the impacted employees.
3. PAGA and AB 2346:
As was discussed above, a private right of action is currently
available to those who wish to ensure enforcement of DOSH's
regulations or orders. As with all PAGA actions, the
aggrieved party would need to contact the Labor and Workforce
Development Agency and notify the Agency of the suspected
violation; if the Agency declines to investigate, then a PAGA
action could follow. In the case of enforcing DOSH
regulations, PAGA would require that the action would halt if
the Court ordered DOSH to go back an issue a citation.
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Committee Staff is unaware of any past or ongoing PAGA filings
seeking to enforce the heat illness regulations.
AB 2346 would create an additional private right of action
that would not require the Division to have declined to
enforce a suspected violation. This could create a situation
where an employer is facing both an administrative hearing and
a superior court hearing on the same violation(s). PAGA does
not allow for this, and it is not clear why a private right of
action on heat illness would operate this way, but not a
private right of action to enforce DOSH chemical regulations
or DOSH regulations on fall protection or other workplace
safety regulations. The Committee may wish to consider if
this additional private right of action is necessary or
appropriate for the enforcement of heat illness regulations.
4. High Hazard Employers and AB 2346:
As was discussed above, existing law provides for a process by
which unsafe employers can be designated as a high hazard
industry employer, which then leads to greater inspection
activity for that employer to ensure compliance with the law.
Under current law, this designation is data based, including
injury surveys and workers' compensation data, and at the
discretion of DOSH.
Under AB 2346, employers who fail to comply with the heat
illness requirements are automatically included on the list of
high hazard industry employers if DOSH doesn't do an on-site
inspection within 24 hours or issue a citation at a later
date. This includes relatively minor violations, such as the
water being at 11 or 12 feet away from the employee, or at a
temperature above 70 degrees.
This places an employer at the mercy of DOSH's enforcement
calendar, and it may significantly impact the ability of an
employer to secure workers' compensation insurance coverage.
Additionally, it limits DOSH's discretion in how these utilize
investigation resources; as soon as an employer is on the high
hazard industry list, DOSH must give priority to inspecting
those employers. The Committee may wish to consider if
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limited DOSH's discretion solely with the enforcement of heat
illness requirements is appropriate.
5. Possible Amendments:
Should AB 2346 be passed from the Senate Labor Committee, the
motion will be 'do pass to Senate Rules Committee' as Senate
Public Safety has concerns on the current criminal provisions
in this bill. An additional referral for this bill, however,
could impact the ability of this bill to clear several
deadlines. In order to avoid this, the Committee may wish to
strike the criminal penalties in the bill, which would be as
follows:
On page 13, strikes lines 27 to 40;
On page 14, strike lines 1 to 22.
6. Proponent Arguments :
This bill is supported by the United Farm Workers (UFW).
Writing in support of this bill, UFW states the following:
"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.
From its own 2009 files, Cal/OSHA has failed to issue
citations in more than 120 instances in which its
inspections determined that serious problems exist. In that
same year, Cal/OSHA repeatedly withdrew citations and
reduced fines, even for violations so egregious that the
agency temporarily shut down the employer's operations.
And, for more than three dozen heat-related complaints in
2009, Cal/OSHA did not conduct any inspections at all.
Last summer, the UFW filed more than 75 serious heat
illness complaints with 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.
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AB 2346 assures that agricultural employers provide water
and 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, AB 2346 also requires meaningful
penalties for those responsible for heat-related illnesses
and deaths.
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 AB
2346, protecting farm workers is simply a good intention."
7. Opponent Arguments :
A large coalition of agriculture and business groups writes
the following in opposition to this measure:
"This legislation is an unjustified and potentially
devastating attack on California's farmers. The author and
sponsors did not reach out to any of our organizations in
crafting the bill because their objective is not to solve a
legitimately defined problem, but rather to demonize
California's farmers.
We cannot speak for other outdoor industries, but we can
state with confidence that California agriculture has
stepped forward to address heat illness in a serious and
sustained way that has increased the protection of our
employees and saved lives. Yet, AB 2346 ironically and
unjustifiably singles out agriculture among the industries
with outdoor employees.
According to the Agency, there has been one confirmed heat
illness fatality in agriculture in the last three years. We
are the first to state that one is too many. It is equally
important to note the progress that has been made since our
industry proactively negotiated the original heat illness
prevention regulation in California- the first state to do
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so - in 2005: That year, there were 12 total outdoor
fatalities - six of which were in agriculture -
attributable to heat illness. Since then, the Agency
reports annual fatalities of eight in 2006 (three in
agriculture), one in 2007 (none in agriculture), six in
2008 (three in agriculture), one in 2009 (none in
agriculture), two in 2010 (none in agriculture) and two in
2011 (one in agriculture).
This is demonstrable and significant progress by any
objective standard. It was achieved in part because the
regulation was well crafted and, as a regulation, could be
readily adjusted or enhanced by the regulatory agency
(Cal/OSHA Standards Board) as experience in the field
informed regulators and stakeholders. Codifying heat
illness requirements will strip the agency 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
conditions."
8. Prior Legislation :
SB 477 (Florez) of 2010 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.
SUPPORT
1 Individual
California Catholic Conference
California Employment Lawyers Association
California Immigrant Policy Center
California Labor Federation
California Latinas for Reproductive Justice
California National Organization for Women
California Primary Care Association
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Senate Committee on Labor and Industrial Relations
California Rural Legal Assistance Foundation
City of Berkley Council Member, Jesse Arreguin
Council of Mexican Federations
Food Empowerment Project
Latino Coalition for a Healthy California
Latino Health Alliance
Mexican American Legal Defense and Educational Fund
National Council of La Raza
Public Council Law Center
The Humane Society of the United States
United Farm Workers (UFW)
OPPOSITION
African American Farmers of California
Agricultural Council of California
Alliance of Western Milk Producers
American Pistachio Growers
Associated General Contractors of California
Associated Roofing Contractors of the Bay Area Counties
California Association of Nurseries and Garden Centers
California Bean Shippers Association
California Chamber of Commerce
California Citizens Against Lawsuit Abuse
California Citrus Mutual
California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Farming Contractors Association
California Floral Council
California Grain and Feed Association
California Grape and Tree Fruit League
California League of Food Processors
California Lodging Industry Association
California Pear Growers Association
California Professional Association of Specialty Contractors
California Seed Association
California State Floral Association
California Tomato Growers Association
Civil Justice Association of California
Construction Employers' Association
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Family Winemakers of California
Fresno County Farm Bureau
Grower-Shipper Association of Central California
Grower-Shipper Association of Santa Barbara and San Luis Obispo
Counties
Imperial Valley Vegetable Association
Nisei Farmers League
Pacific Egg and Poultry Association
Raisin Bargaining Association
Residential Contractors Association
Rominger Brothers Farms, INC.
Simi Valley Chamber of Commerce
Southwest California Legislative Council
The Wine Institute
Ventura County Agricultural Association
Walter and Prince, LLP
Western Agricultural Processors Association
Western Growers Association
Western Steel Council
Western United Dairymen
Wine Institute
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