BILL ANALYSIS �
SB 829
Page 1
Date of Hearing: July 6, 2011
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
SB 829 (DeSaulnier) - As Amended: July 1, 2011
SENATE VOTE : 23-15
SUBJECT : Occupational safety and health.
SUMMARY : Revises various provisions of law related to the
issuance and adjudication of citations for alleged violation of
occupational safety and health laws. Specifically, this bill :
1)Provides that the Occupational Safety and Health Appeals Board
(Appeals Board) shall liberally construe the provisions of
current law in order to promote safe and healthy working
conditions for the working men and women of this state.
2)Clarifies that an affected person seeking judicial review of
an Appeals Board decision after reconsideration (DAR) (as
authorized under existing law) shall not be precluded from
doing so because the individual did not participate in the
appeal, as specified.
3)Provides that the Appeals Board, in adjudicating appeals, is
subject to and shall apply those rules and regulations adopted
by the Department of Industrial Relations (DIR).
4)Deletes a provision of existing law that allows an employer to
recover reasonable costs (including attorneys' fees) against
the Division of Occupational Safety and Health (DOSH) if the
issuance of the citation was the result of an arbitrary or
capricious action or conduct by DOSH.
5)Provides that the list of employee representative authorized
to file a formal complaint on behalf of an employee includes,
but is not limited to, a family member, a union representative
regardless of whether the union has an agreement with the
employer, or a community, employee or legal organization (in
addition to individuals currently already listed as examples
of employee representatives).
6)Specifies that DOSH shall also issue citations for alleged
violations of the relevant provisions of the Labor Code, not
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just DOSH regulations.
7)Provides that if an employer or employee contests the period
of time fixed for correction of a violation (also known as
abatement) for a serious or similar violation, any hearing on
that issue shall be conducted as soon as reasonably possible
and shall take precedence over other hearings conducted by the
Appeals Board.
8)Provides that, whenever a citation has been issued, the
Appeals Board shall permit the following individuals to
participate as a party in the appeal and to contest the period
of time for abatement of the violation:
a) An employee or his or her representative, as specified.
b) A union that has a collective bargaining agreement with
any employer that covers the cited employer's place of
business.
c) A deceased worker's successor in interest, heir,
beneficiary or other representative.
9)Amends various provisions of law that allow specified
individuals to contest the period for abating an alleged
violation to include the above-listed individuals.
10)Authorizes the Appeals Board to modify a proposed penalty, if
the penalty modification is not in conflict with any other
section of code or regulation, as specified.
11)Requires the rules of practice and procedure adopted by the
Appeals Board to provide all parties with the opportunity to
fully participate in any hearing, receive notices, be
permitted to subpoena witnesses and documents, offer evidence,
examine and cross-examine witnesses, and argue and submit
briefs, and participate fully in any settlement discussions or
in in any proceeding where settlement may take place.
12)Requires the rules of practice and procedure adopted by the
Appeals Board to provide for the scheduling of hearings in a
manner designed to minimize inconvenience to DOSH and all
parties and witnesses, as specified.
13)Authorizes the Appeals Board, at any time before a decision
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becomes final, to amend the issues on appeal or the DOSH
action so long as such amendment is consistent with the
transaction or occurrence contained in the original citation,
according to proof, as specified.
14)Makes several legislative findings and declarations regarding
the duties of the Appeals Board, as specified.
15)Provides that, whenever a case if referred to the Bureau of
Investigations (BOI) or is actively being investigated or
prosecuted by a prosecuting attorney, the Appeals Board shall
continue any proceeding before it upon the written request of
DOSH, the employer or the prosecuting attorney. In the
alternative, the Appeals Board may dismiss the employer's
appeal with leave to file within 15 days of the completion of
the criminal case.
16)Requires an employer to provide notice of an appeal to its
employees by posting the appeal form and specified related
documents at the place of violation or a conspicuous place
where employees report each day. Notice is also required to
be provided to each union with which the employer has a
collective bargaining agreement.
17)Makes other related and conforming changes.
FISCAL EFFECT : According to the Senate Appropriations
Committee, this bill will result in unknown, potentially major
(special funds) costs annually.
COMMENTS : In general, this bill seeks to revise various
provisions regarding citations issued by DOSH, the persons or
entities who are authorized to participate as a party in an
appeal before the Appeals Board, and the procedures that govern
the Appeals Board in hearing and deciding appeals.
General Background on Occupational Safety and Health Law
With the passage of the Occupational Safety and Health Act of
1970, Congress created the Federal Occupational Safety and
Health Administration (Federal OSHA) as part of the United
States Department of Labor to ensure safe and healthful working
conditions for working men and women by setting and enforcing
standards and by providing training, outreach, education and
assistance. The OSH Act covers employers and their employees
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either directly through federal OSHA or through an OSHA-approved
state program. State programs must meet or exceed federal OSHA
standards for workplace safety and health.
The California Occupational Safety and Health Act of 1973 was
enacted to ensure safe and healthful working conditions for all
California workers by, among other things, authorizing the
enforcement of effective standards as well as assisting and
encouraging employers to maintain safe and healthful working
conditions. The Division of Occupational Safety and Health
(DOSH, also known as Cal/OSHA), within the state DIR, is charged
with enforcing occupational health and safety laws, orders, and
standards, including the investigation of alleged violations of
those provisions.
Existing law empowers DOSH to cite an employer if, upon
inspection or investigation, DOSH believes that the employer has
violated safety laws or any standard, rule, order, or regulation
created through existing law. The citation must be in writing
and include the particular nature of the violation and a
reasonable time for the abatement of the alleged violation.
The Appeals Board, also within DIR, is a three-member judicial
body appointed by the Governor and confirmed by the Senate,
which handles appeals from private and public-sector employers
regarding citations issued by DOSH for alleged violations of
workplace safety and health laws. Employers may contest the
existence of violations alleged in a citation, as well as the
amount of any proposed civil penalty, within 15 working days of
its receipt. (Labor Code �6600) After review and/or a hearing,
the Appeals Board must issue a decision, based on findings of
fact, affirming, modifying, or vacating DOSH's citation, order,
or proposed penalty, or directing other appropriate relief.
Recent Oversight of the Appeals Board
In recent years, concerns have been raised regarding some of the
Appeal Board's operational practices and the effect of these
practices on appeal outcomes. As a result of the concerns
raised by stakeholders, this committee and the Senate Committee
on Labor and Industrial Relations have conducted oversight
hearings on the Appeals Board since 2009. Specifically, critics
expressed concern that the Appeals Board's operational practices
made it harder for DOSH to prosecute employers who violate the
state's workplace health and safety laws and led to the more
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frequent use of fine and penalty reductions to settle cases --
many times settling cases that both DOSH and employers otherwise
would not have agreed to.
On June 13, 2009, 47 DOSH employees wrote a letter to the
Appeals Board protesting the board's policies and practices and
demanding that the board "cease and desist" from practices they
believe undermine their ability to protect workers. Among the
concerns raised at the hearings and in the DOSH letter, were the
effects of the actions taken by the Appeals Board to reduce the
backlog of appeals cases such as the scheduling of several
hearings per day involving the same judge and staff, denying or
even ignoring justified continuance requests, the scheduling of
hearings in remote locations -- making it difficult for
witnesses to attend hearings, dismissing cases on
technicalities, and conducting drastic penalty reductions. Some
advocates have alleged that the combination of these factors
have resulted in a situation where unscrupulous employers can
utilize the appellate process to delay enforcement of the law
designed to protect workers.
On September 28, 2010, the Federal Occupational Safety and
Health Administration (Fed-OSHA), within the U.S. Department of
Labor, released an audit highlighting several deficiencies both
at DOSH and the Appeals Board. According to the federal audit,
the state's standards and enforcement policies and procedures
differ significantly from the federal and as a result raise
questions regarding their equivalent effectiveness. Of
particular concern to Fed-OSHA was the appeals process
administered by the Appeals Board which raised serious concerns
about both the procedures and the results of the process.
(Federal Annual Monitoring and Evaluation Report (FAME), U.S.
Department of Labor - Occupational Safety and Health
Administration, 2010).
Recently, some efforts have been undertaken by the Appeals Board
to address some of the concerns previously raised by advocates.
For example, the Appeals Board has made changes to the
scheduling of hearings -- limiting it to two per day per ALJ,
using Fresno as an additional venue for holding hearings, and
considering regulatory changes to address the board's practices
on requests for continuances. The Appeals Board also addressed
the problem of abatement while a case is under appeal by
creating the Expedited Abatement Hearing Pilot Project, which
dealt with cases involving serious, willful and/or repeat
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violations and completed the appeal process for these cases
within four months. The Appeals Board is considering regulatory
changes to make this pilot project permanent and to address
other issues of concern to stakeholders. There are, however,
several issues that critics believe the Appeals Board still
needs to address. For this purpose, the author has introduced
this bill to revise various provisions regarding citations
issued by DOSH, the persons or entities who are authorized to
participate as a party in an appeal before the appeals board,
and the procedures that govern the appeals board in hearing and
deciding appeals. The bill also would make other related
clarifying and conforming changes.
ARGUMENTS IN SUPPORT :
According to the author, the Appeals Board has, for several
years, followed procedures and ruled
in ways that undermine safety and health laws and regulations
that are meant to protect workers.
Additionally, the author argues that its procedures are also
often unfair to employers. Moreover,
the author argues that the Appeals Board has also adopted
procedures and evidentiary standards
that are more onerous than many courts, thereby undermining the
division's ability to defend
their citations.
Specifically, the author cites instances where the Appeals Board
has ignored minimum penalty amounts mandated by statute and
permits the abatement of unsafe conditions to be stayed pending
the outcome of an appeal which results in hazards going
uncorrected for years. Also of concern to the author is the
Appeals Board's practice of denying party status to the
collective bargaining agent of workers and to the family members
of deceased workers. According to the author, without more
oversight by workers, employers can get away with minimal
penalties that do not deter bad actors and put the safety of
workers at risk.
According to proponents, this bill contains a number of
important changes one of which would address concerns over the
delay in correcting an unsafe condition once an appeal is filed.
Additionally, this bill will allow families to have the right
to full participation on behalf of a loved one who has been
killed in a workplace incident. Proponents argue that the
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safety and health of workers on the job should be the Appeal
Board's primary concern and the appeals process should not allow
for their continued exposure to hazardous working conditions.
Proponents argue that this bill will refocus the Appeals Board
on protecting worker health and safety and assure a fair hearing
for all by clarifying existing laws to ensure that the board
complies with both the "spirit of the law" and the "letter of
the law." The author believes that these changes will better
protect workers and ensure a fair hearing for all.
ARGUMENTS IN OPPOSITION:
A large coalition of employer groups, including the California
Chamber of Commerce and others, opposes this bill and contends
that it undermines employer rights in DOSH citations by allowing
private parties to interfere with the appeals process which
could impose significant costs on employers, the Appeals Board
and on DOSH. The bill makes sweeping changes and imposes new
burdens to the procedures of the Appeals Board, disadvantaging
employers and increasing costs to the board, to DOSH and to
employers.
Opponents state that all employers have the right to appeal a
DOSH citation and proposed penalty for any number of reasons.
This appeals process was designed to allow an employer to be
able to represent itself in an appeal, or to be represented by
an attorney. In creating overly complex requirements, the
provisions of the bill disincentivize employers from appealing
citations, and easily penalize employers when they do appeal.
Opponents argue that employers need certainty. However, this
bill creates a system in which employers never know when the
process is final, or what they can expect. By this significant
expansion of who can participate as a party in an appeal,
certainty and fairness for employers are severely compromised.
Opponents believe the provisions of this bill create an unfair
system designed to penalize employers and discourage them from
exercising their rights to file an appeal.
In addition to their opposition to the public policy proposed by
this bill, opponents have grave concerns regarding its fiscal
impact to the state. They contend that these provisions will
create delays and require additional administrative law judges
and support staff, as well as the creation of new regulations
and procedures, and will increase litigation in which the
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Appeals Board and DOSH will be forced to participate.
Opponents raise particular objections to the provision of the
bill related to party status and argue that this provision is an
over-reach and over-expansion into the rights of an employer to
conduct their business by creating an expansion of party status
to contest specific provisions of the citation without
qualification as an affected party. They argue that the appeals
process is an adjudicatory one and should not be a three ring
circus by such an expansion of party status at the employers'
expense. This provision could disadvantage the employer, create
the opportunity for abuse of recourses and extend the hearing
process at financial expense to the employer, the Appeals Board
and DOSH. It could also allow employees to hold employers
hostage and force hearings for motives other than job safety.
REGISTERED SUPPORT / OPPOSITION :
Support
Alameda Labor Council
American Federation of Government Employees, Local 3172
Asian Law Caucus
Asian Pacific American Legal Center
Building and Construction Trades Council of Alameda County,
AFL-CIO
California Alliance for Retired Americans
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Employment Lawyers Association
California Labor Federation, AFL-CIO
California Nurses Association
California Teamsters Public Affairs Council
Communications Workers of American, AFL-CIO
Consumer Attorneys of California
East Bay Alliance for a Sustainable Economy
Engineers and Scientists of California
IATSE, Local 16
International Brotherhood of Electrical Workers, Local Union
1245
International Brotherhood of Electrical Workers, Local Union 595
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International Longshore & Warehouse Union
Iron Worker Employer
National Council for Occupational Safety and Health
National Lawyers Guild, Labor & Employment Committee
Northern California District Council of the International
Longshore and Warehouse Union
Professional & Technical Engineers, Local 21
San Diego County Building & Construction Trades Council, AFL-CIO
San Mateo County Central Labor Council
Service Employees International Union, Local 1000
Southern California Coalition for Occupational Safety & Health
State Building and Construction Trades Council (co-sponsor)
UNITE HERE!
UNITE HERE, Local 2850
United Food and Commercial Workers Union, Western States Council
United Steelworkers, Local 675
United Support and Memorial for Workplace Fatalities
United Union of Roofers, Waterproofers and Allied Workers, Local
81
UPTE-CWA, Local 9119
Worksafe, Inc. (co-sponsor)
Opposition
Associated Builders and Contractors of California
Associated General Contractors of California
Associated Roofing Contractors of the Bay Area Counties
California Association of Health Facilities
California Association of Sheet Metal and Air Conditioning
Contractors' National Association
California Attractions and Parks Association
California Automotive Business Coalition
California Beer and Beverage Distributors
California Chamber of Commerce
California Chapter of the American Fence Association
California Citrus Mutual and Nisei Farmers League
California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Fence Contractors' Association
California Framing Contractors Association
California Grape and Tree Fruit League
California Grocers Association
California Hospital Association
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California League of Food Processors
California Manufacturers and Technology Association
California Professional Association of Specialty Contractors
California Retailers Association
Construction Employers' Association
District Council of Iron Workers/California Iron Worker Employer
Council
Engineering and Utility Contractors Association
Engineering Contractors' Association
Flasher/Barricade Association
Golden State Builders Exchanges
Irvine Chamber of Commerce
Marin Builders Association
Pacific Merchant Shipping Association
Residential Contractor's Association
Robert D. Peterson Law Corporation
Simi Valley Chamber of Commerce
Walter & Prince, LLP
Western Agricultural Processors Association
Western Growers
Western Steel Council
Wine Institute
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091