BILL ANALYSIS �
AB 2346
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CONCURRENCE IN SENATE AMENDMENTS
AB 2346 (Butler)
As Amended August 21, 2012
Majority vote
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|ASSEMBLY: |41-28|(May 31, 2012) |SENATE: |21-12|(August 27, |
| | | | | |2012) |
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Original Committee Reference: L. & E.
SUMMARY : Enacts various provisions of law related to heat
illness and outdoor places of agricultural employment, including
provisions related to civil liability and enforcement.
The Senate amendments :
1)Eliminate provisions of the bill that established specific
requirements with respect to, among other things, the
provision of shade and water and instead generally refer to
the existing heat illness standard regulation.
2)Provide that every employer shall comply with the existing
heat illness standard regulation and with other existing
requirements related to the prevention of heat illness.
3)Provide that an employee shall not be discharged or penalized
in any way for taking action to secure his or her employer's
compliance with this bill and with the existing heat illness
prevention standard regulation, as specified.
4)Eliminate provisions of the bill related to the provision of
emergency medical services and other requirements.
5)Eliminate specified provisions of the bill related to the
manner of enforcement and investigation by the Division of
Occupational Safety and Health (DOSH).
6)Eliminate specified criminal provisions of the bill.
7)Provide that the civil private right of action may be brought
only against a "repeat offender" as specified.
8)Define a "repeat offender" as a farm operator or an
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agricultural employer with violations on two or more days
within a three year period, as specified.
9)Specify that DOSH may bring an administrative proceeding
against repeat offenders, as specified.
10)Make other technical and related changes.
AS PASSED BY THE ASSEMBLY , this bill:
1)Provided that the requirements of the bill apply to all
outdoor places of agricultural employment.
2)Enacted 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 10 feet
from where they are working, to fresh, pure, and suitably
cool potable drinking water, as specified.
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.
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
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. 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.
3)Enacted the following requirements with respect to shade:
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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.
4)Provided 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.
5)Required the employer to implement additional high-heat
procedures when the temperature equals or exceeds 80 degrees
Fahrenheit, as specified, including 15 minute breaks every two
hours and the use of a "buddy" system.
6)Required 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.
7)Required an employer to establish emergency response
procedures, as specified.
8)Established specific training requirements for employees and
supervisors.
9)Required the employer to comply with written procedure,
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certification and posting requirements relating to heat
illness prevention, as specified. These provisions include a
requirement 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 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.
10)Prohibited 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.
11)Established civil penalties for violations of specified
requirements as follows:
a) For each day on which the violation existed and the
temperature did not exceed 80 degrees Fahrenheit, $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 Fahrenheit, $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 Fahrenheit, $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 Fahrenheit, $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.
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g) 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.
12)Established certain enforcement methods and protocols for
DOSH, as specified.
13)Authorized 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% of any civil penalties recovered by an employee
shall be distributed to DOSH.
14)Provided 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.
15)Provided that directing an agricultural employee to perform
work, or supervising an agricultural employee, without
specified safeguards, may constitute the crime of involuntary
manslaughter, as provided.
16)Provided 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 up
to $1 million in compensation for the lost future earnings of
the deceased employee.
FISCAL EFFECT : According to the Senate Appropriations
Committee, this bill will result in major costs annually to the
Occupational Safety and Health Fund in the Department of
Industrial Relations.
COMMENTS : One of the most significant workplace safety issues
addressed by the Legislature and state enforcement agencies in
recent years has involved worker exposure to heat illness.
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This bill is sponsored by the United Farm Workers of America
(UFW). Writing in support of this bill, UFW states that this
bill 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, this bill
also requires meaningful penalties for those responsible for
heat-related illnesses and deaths.
UFW argues that this bill 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.
A large coalition of agriculture and business groups opposes
this measure, arguing that it is an unjustified and potentially
devastating attack on California's farmers. They argue 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, this bill
ironically and unjustifiably singles out agriculture among the
industries with outdoor employees.
Opponents also argue that, beyond this bill's faulty premise
that the current regulation is inadequate and a draconian
version must be placed inflexibly into statute in a form
dictated by the sponsor, the bill establishes extraordinarily
high fines for violations of the bill's complex and unworkable
mandates, as high as $10,000 per employee, up to $200,000. To
make this even more onerous, this bill provides the gift of a
new revenue stream to legal aid groups with "bounty hunter"
provisions making farmers jointly liable for alleged violations
by farm labor contractors and allowing agricultural employees to
sue not only their employers but their employers' customers for
alleged violations.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
AB 2346
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FN: 0005158