BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 2346|
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THIRD READING
Bill No: AB 2346
Author: Butler (D)
Amended: 8/21/12 in Senate
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMM. : 5-0, 6/27/12
AYES: Lieu, DeSaulnier, Leno, Padilla, Yee
NO VOTE RECORDED: Wyland, Runner
SENATE APPROPRIATIONS COMMITTEE : 5-2, 8/16/12
AYES: Kehoe, Alquist, Lieu, Price, Steinberg
NOES: Walters, Dutton
ASSEMBLY FLOOR : 41-28, 5/31/12 - See last page for vote
SUBJECT : Agricultural employee safety: heat-related
illness
SOURCE : Author
DIGEST : This bill prescribes specified duties on
employers to reduce the risk of heat illness among
agricultural employees, to be enforced by the Division of
Occupational Safety and Health (DOSH). This bill imposes
specified civil penalties, and creates a private right of
action, for violations of these requirements. This bill
requires the Director of the Department of Industrial
Relations to provide an annual report to the Legislature
regarding the enforcement of the requirements.
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ANALYSIS : 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
DOSH enforces occupational safety and health standards and
orders. Certain violations of these standards and orders
are crimes. Existing regulations prescribe duties with
respect to heat illness prevention in outdoor place of
employment.
This bill:
1. Requires an employer to comply with any regulation or
statute imposing requirements related to the prevention
of heat illness, including those requiring an employer
to provide employees with water, shade, or training in
the prevention of heat illness.
2. States that an employee shall not be discharged or
penalized in any way for taking action to secure his/her
employer's compliance with the requirements of this
chapter. Actions to secure an employer's compliance
with the requirements of this chapter include 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 a person or entity about
the employer's compliance with the requirements of this
chapter; or participating in any way in an
investigation, action, or proceeding to enforce the
requirements of this chapter.
3. Requires an employer to certify, by January 31 of each
year, or on the first day of operation in any calendar
year in which an employer beings 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,
as required by law. This certification shall be in
writing, signed, and dated, and shall be made available
within 24 hours after a request is made by a
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representative of the division, an employee, or a
representative of an employee.
4. State that if, following certification, an employer is
found not to have adopted written procedures for
complying with the requirements of this chapter, 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, as required
by law, 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.
5. Establishes civil penalties for violations of specified
requirements as follows:
A. 50% of any civil penalties recovered by an
employee shall be distributed to DOSH.
B. 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.
C. An employee may bring civil action against an
agricultural entity involved in farming operation,
including a farm operator, that is a repeat offender.
D. 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.
E. 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.
F. 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.
G. For each day on which the violation existed and
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the temperature exceeded 100 degrees, $10,000
multiplied by the number of employees on the work
crew at the time of the violation.
H. Where a violation existed and an employee suffered
heat illness, the penalty shall be not less than
$50,000.
I. No penalty shall exceed $200,000.
J. The civil penalty may be reduced by as much as 50%
if the violation did not exist during a work period
where an employee suffered heat illness, based on
specified considerations.
6. Provides that an enforcement action or proceeding may be
brought against all agricultural entities involved in
the farming operation, including the farm operator that
is a repeat offender. 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 bill and that farm
operator shall be jointly and severally liable with and
to the same extent as the agricultural employer.
Comments
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.
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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. 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).
PAGA and AB 2346
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.
Senate Labor and Industrial Relations Committee staff is
unaware of any past or ongoing PAGA filings seeking to
enforce the heat illness regulations.
According to the Senate Labor and Industrial Relations
Committee analysis, this bill creates an additional private
right of action that would not require DOSH 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.
High Hazard Employers and AB 2346
According to the Senate Labor and Industrial Relations
Committee analysis, 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
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activity for that employer to ensure compliance with the
law. Under existing law, this designation is data based,
including injury surveys and workers' compensation data,
and at the discretion of DOSH.
Under this bill, employers who fail to comply with the heat
illness requirements are automatically included on the list
of high hazard industry employers if DOSH does not 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.
Prior Legislation
SB 477 (Florez, 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 6/27/12) (per Senate Labor and
Industrial Relations Committee analysis - unable to
reverify at time of writing)
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
California Rural Legal Assistance Foundation
City of Berkley Council Member, Jesse Arreguin
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Council of Mexican Federations
Food Empowerment Project
Humane Society of the United States
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
United Farm Workers
OPPOSITION : (Verified 6/27/12) (per Senate Labor and
Industrial Relations Committee analysis - unable to
reverify at time of writing)
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
Family Winemakers of California
Fresno County Farm Bureau
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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
Ventura County Agricultural Association
Walter and Prince, LLP
Western Agricultural Processors Association
Western Growers Association
Western Steel Council
Western United Dairymen
Wine Institute
ARGUMENTS IN SUPPORT : This bill is supported by the
United Farm Workers (UFW), which 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.
AB 2346 assures that agricultural employers provide water
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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.
ARGUMENTS IN OPPOSITION : A large coalition of
agriculture and business groups writes the following in
opposition to the bill:
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 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
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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.
ASSEMBLY FLOOR : 41-28, 5/31/12
AYES: Alejo, Allen, Ammiano, Beall, Block, Blumenfield,
Bonilla, Bradford, Brownley, Butler, Charles Calderon,
Campos, Carter, Cedillo, Davis, Dickinson, Eng, Feuer,
Fong, Fuentes, Furutani, Gatto, Gordon, Hall, Hayashi,
Roger Hern�ndez, Hill, Hueso, Lara, Bonnie Lowenthal,
Mitchell, Monning, Pan, V. Manuel P�rez, Skinner,
Solorio, Swanson, Torres, Williams, Yamada, John A. P�rez
NOES: Achadjian, Bill Berryhill, Buchanan, Conway, Cook,
Donnelly, Beth Gaines, Garrick, Gorell, Grove, Hagman,
Halderman, Harkey, Huber, Jeffries, Jones, Knight, Logue,
Ma, Miller, Morrell, Nestande, Nielsen, Olsen, Silva,
Smyth, Wagner, Wieckowski
NO VOTE RECORDED: Atkins, Chesbro, Fletcher, Galgiani,
Huffman, Mansoor, Mendoza, Norby, Perea, Portantino,
Valadao
PQ/DLW:mk 8/21/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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