BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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6
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AB 2676 (Charles Calderon) 6
As Amended June 26, 2012
Hearing date: July 3, 2012
Penal Code
MK:mc
AGRICULTURAL EMPLOYEE SAFETY
HISTORY
Source: United Farm Workers
Prior Legislation: None
Support: The Humane Society of the United States
Opposition:Agricultural Council of California; Alliance of
Western Milk Producers; American Pistachio Growers;
CalChamber; California Association of Nurseries and
Garden Centers; California Association of Wheat
Growers; California Association of Winegrape Growers;
California Bean Shippers Association; 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
Warehouse Association; Family Winemakers of California;
Nisei Farmers League; Pacific Coast Renderers
Association; Pacific Egg & Poultry Association; Western
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Agricultural Processors Association; Western Growers
Association; Western United Dairymen; Wine Institute
Assembly Floor Vote: Not applicable
KEY ISSUE
SHOULD IT BE A MISDEMEANOR FOR ANY PERSON WHO DIRECTS AN
AGRICULTURAL EMPLOYEE TO PERFORM, OR SUPERVISE AN AGRICULTURAL
EMPLOYEE IN THE PERFORMANCE OF OUTDOOR WORK TO NOT PROVIDE THE
EMPLOYEE WITH BOTH CONTINUOUS READY ACCESS TO AN AREA OF SHADE
SUFFICIENT TO ALLOW THE BODY TO COOL, AND POTABLE WATER THAT IS
SUITABLY COOL AND AVAILABLE IN QUANTITIES TO ALLOW THE EMPLOYEE TO
DRINK ONE QUART OF WATER PER HOUR THROUGHOUT THE EMPLOYEE'S WORK
SHIFT?
PURPOSE
The purpose of this bill is to make it a misdemeanor to not
provide adequate water or shade to an agricultural employee.
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 provides that knowingly, negligently, or repeatedly
violating an order of the Division of Occupational Safety and
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Health, or inducing someone to do so is a misdemeanor that
entails the following penalties:
For knowingly or negligently violating a standard, six
months in prison, a civil penalty of $5,000 to $15,000, or
both;
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:
For a straight violation, a civil penalty of up to
$70,000, but no less than $5,000 for each willful
violation;
If the violation leads to a serious injury or death, a
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.
Existing law provides that 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 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:
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.
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
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must be encouraged.
Shade must be present whenever the temperature is 85
degrees or more, and the shade must be sufficient to
accommodate 25% of the employees on the shift at any 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;
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.
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.
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 provides that it is a misdemeanor for any person who
directs or supervises an agricultural employee in the
performance of outdoor work to not supply that employee with
both continuous, ready access to an area of shade sufficient to
allow the body to cool and potable water that is suitably cool
and available in quantities sufficient to allow the employee to
drink one quart of water per hour throughout the employee's work
shift.
This bill provides that a violation of the above misdemeanor is
punishable by imprisonment in the county jail not exceeding 6
months and/or a fine not exceeding $10,000.
This bill provides that if a violation of the above misdemeanor
causes injury, it is punishable by up to one year in the county
jail and/or a fine not exceeding $25,000.
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This bill provides that nothing in this section shall preclude
prosecution under any other law.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
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state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
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167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for this Bill
According to the author:
At least 16 farm workers have died since the
state issued an emergency regulation related to heat
illness in 2005. See attached list of deaths.
Since all of these deaths were preventable, it
is clear the regulation and its enforcement are
ineffective.
AB 2676 assures that farm workers will receive
water and shade as required by law. As farm workers
continue to die of heat illness, AB 2676 offers, at a
minimum, similar protections for farm workers as
animals in this state.
2. Misdemeanor for Not Providing Shade or Water
This bill would make it a clear misdemeanor, in the Penal Code,
for not providing adequate shade or water to an agricultural
employee. The penalty will be up to six months in jail and/or a
$10,000 fine (approximately $38,000 with penalty assessments).
However, if an injury occurs as a result of the violation, the
penalty will be up to one year in jail and/or a fine of $25,000
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(approximately $95,000 with penalty assessments).<1>
Lester Fleming a deputy district attorney in San Joaquin County
stated in a letter to the Assembly Public Safety Committee on AB
2346 that part of the difficulties he found in prosecuting a
death of a farm worker that occurred because of heat related
illness was that the statutes which could be used were vague.
In creating a clear misdemeanor for failure to provide adequate
shade and water this bill should help alleviate the vagueness
issue.
3. Opposition
The opponents to this bill state:
California Agriculture supports our state's heat stress
regulations which are the only one of its kind in the
nation. It covers all outdoor employees because the
heat does not discriminate between industries.
California agriculture has made compliance with these
regulations a top priority and has stepped forward in a
serious and sustained manner that has substantially
increased the protection of our employees and saved
lives.
AB 2676 is inconsistent with existing Cal/OSHA
regulations. The bill would create violations for
activities not required. For example, the bill would
require shade at all times; the existing regulations
understand that shade is not needed when temperatures
are moderate. As drafted, AB 2676 will create much
confusion in the industry.
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<1> Until the budget year 2002-2003, there was 170% in penalty
assessments applied to every fine, the current penalty
assessments are approximately 280%. (See Penal Code � 1464;
Penal Code � 1465.7; Penal Code � 1465.8 Government Code �
70372; Government Code � 7600.5; Government Code � 76000 et seq;
Government Code � 76104.6)
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AB 2676 would create new criminal penalties only for
the agricultural industry, unjustifiably singling us
out among the industries with outdoor employees. All
outdoor workers deserve the same protections. Our
industry has a strong record of supporting legislation,
such as AB 1675 (Bonilla), to punish bad actors.
Unfortunately, the language in AB 2676 is overly broad
and inconsistent with existing law.
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