BILL ANALYSIS �
AB 1634
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Date of Hearing: March 19, 2014
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hern�ndez, Chair
AB 1634 (Skinner) - As Introduced: February 10, 2014
SUBJECT : Occupational safety and health: violations:
abatement.
SUMMARY : Enacts various provisions of law related to an
employer's obligation to abate an alleged hazard pending appeal
of a citation. Specifically, this bill :
1)Provides that an appeal of a citation that is classified and
cited as a serious violation, a repeat serious violation, or a
willful serious violation shall not stay the abatement periods
and requirements.
2)Provides that if a stay of abatement is requested by the
Division of Occupational Safety and Health (DOSH), it may stay
the abatement if it determines that a stay will not adversely
affect the health and safety of employees.
FISCAL EFFECT : Unknown
COMMENTS : This bill deals with an employer's obligation to
abate a violation pending an employer's appeal to the
Occupational Safety and Health Appeals Board (OSHAB). Under
current law, DOSH may issue a citation or notice of proposed
penalty to an employer if it determines that the employer has
violated existing law. The citation is required to be in
writing and describe with particularity the nature of the
violation. The citation is also required to fix a reasonable
time for the abatement of the alleged violation. An employer
may appeal the citation by filing an appeal with the OSHAB
within 15 days of the receipt of the citation. However, there
is generally no obligation for an employer to abate the alleged
violation while the appeal is pending.
In recent years, worker advocates and other stakeholders have
raise concern that, since an employer appeal of a citation may
not be heard and ruled upon for months (or even years), this can
lead to workplaces remaining dangerous months after an inspector
has ruled that it is unsafe.
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AB 1988 (Swanson) from 2008
The debate around the abatement issue in recent years began with
AB 1988 (Swanson) from 2008. Among other things, AB 1988 would
have required an employer to request a stay of abatement to the
Board (in its appeal) and to make certain showings.
Specifically, AB 1988 provided that an abatement measure
required by DOSH would not be stayed pending an employer appeal
unless the employer indicated by verified petition that it seeks
a stay of abatement and the reasons why abatement is not
necessary to protect the health or safety of employees. The
OSHAB would then schedule a hearing within 30 days (which may be
extended another 30 days in complex cases) and issue a decision
within 10 days.
AB 1988 authorized the Board to grant the stay of abatement
where it found either (1) that no employee will be exposed to
the unsafe or unhealthy condition, or (2) or that the condition
is unlikely to cause death, serious injury or illness, or
serious exposure to the employee.
AB 1988 was held under submission in the Senate Appropriations
Committee.
The OSHAB Expedited Appeal Pilot Project
Based on the concerns raised by AB 1988, the OSHAB subsequently
enacted an Expedited Appeal Pilot Project which sought to
expedite appeals for hearings that involved an appeal to an
abatement order as part of the citation. The goal of this pilot
project was to "fast track" certain appeals where abatement was
an issue in order to minimize the risk of continued exposure to
an alleged violation by workers.
In November 2011 the OSHAB indicated that the pilot project was
discontinued due to lack of resources. However, the pilot
project was reportedly re-instituted at a subsequent date.
SB 829 (DeSaulnier) from 2011
The abatement issue was revisited in SB 829 (DeSaulnier) from
2011. Among other things, SB 829 provided 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
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violation, any hearing on that issue shall be conducted as soon
as reasonably possible and shall take precedence over other
hearings conducted by the OSHAB. However, these provisions were
amended out of SB 829 and the bill was used for another purpose.
Recent OSHAB Rulemaking
Recently, the OSHAB enacted a package of proposed regulations
that, among other things, addresses the abatement issue. The
rulemaking was made effective July 1, 2013.
With respect to abatement, the rulemaking amended Section 373 of
the regulations (which governs expedited proceedings) to provide
the following additional language:
"(b) Where the Appeals Board is aware or is notified that
an alleged violation appealed is
classified by the Division of Occupational Safety & Health
as a Serious, Repeat Serious, Willful Serious, Willful,
Willful Repeat or Failure to Abate, and either abatement is
on appeal, or abatement has not occurred, the Appeals Board
shall expedite the proceeding.
(c) The Appeals Board shall serve parties written
explanation of the expedited process, a
notification of docketing, a copy of the docketed appeal
forms and citations, a standing ordercompelling discovery,
a stipulation form, and a status conference notice.
(1) A telephonic status conference shall be held within 30
days of the docketing of the appeal. At that time, the ALJ
will confirm that the expedited process is appropriate,
review the requirements of the expedited process with the
parties, review pending and impending discovery, and make
such orders regarding any matter as needed to meet the
timetable of this section.
(2) A telephonic prehearing conference shall be held within
60 days of the status conference. The prehearing
conference will proceed under Section 374. The parties will
be required to stipulate to undisputed facts, identify
issues, and raise issues regarding the admissibility of
evidence. The parties shall identify all witnesses and
exhibits they intend to call or introduce at the hearing.
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(3) A hearing shall be held within 60 days of the
prehearing conference and will be scheduled for one day and
adjusted, if necessary.
(4) The Appeals Board or a party may bring a motion to
shorten the timeframes set forth in subsections (c)(1) -
(3) on a showing of good cause."
The Initial Statement of Reasons filed by OSHAB accompanying the
proposed rulemaking stated the following:
"The purpose of this proposed change is to uniformly
expedite certain types of appeals in order to mitigate the
delay in abatement that can occur as a result of Rule 362,
which allows for the automatic stay of abatement in every
case.
The problem addressed is the small but meaningful number of
cases wherein a hazardous condition remains unabated at a
cited employer's workplace pending the resolution of the
appeal. The Labor Code provides an employer the
opportunity to challenge any citation, and the automatic
stay rule (Title 8, section 362) exists to protect
employers from the expense of implementing changes to its
operations (i.e. abatement of an alleged violation) that
ultimately are not required if the citation is successfully
appealed. The automatic stay rule is a Board rule that
preserves Board resources by not requiring adjudication of
the merits of a stay in each case. Such a requirement
would necessitate very different procedures and would
require more resources than the Board currently has
available. Most employers voluntarily abate, as ordered in
a citation, because doing so allows for an abatement credit
of a 50% reduction in the proposed penalty. This allowance
is due to
Director's regulations and is beyond the scope of the
Appeals Board's rulemaking authority.
Alternatives to this rule were proposed by stakeholders,
namely, repeal of the automatic stay provision. However,
such alternative would not be less burdensome and equally
effective. Rather, such would result in employers who
contest the abatement ordered by the Division having no
remedy to obtain a stay other than by seeking one from the
superior court. This is costly for employers and the
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Division, which must respond. Another alternative
considered in principle was a shortened procedure for
addressing requests by employers for a stay and the repeal
of the automatic stay. This was not the least costly,
effective alternative, as it would require two hearings in
cases where abatement was contested. A compelling argument
was also made that the merits of ordering a stay turn on
whether the violation occurred, and so any procedure
addressing the merits of a stay requires a hearing on the
merits of the alleged violation. For purposes of allowing
discovery by the parties, reaching the merits consumes
approximately 120 days of time.
Reason this alternative was selected: Since the great
majority of employers who appeal also voluntarily abate the
cited condition, and since non-serious and regulatory
violations pose less of a danger to employees, staying
abatement in those cases but pushing forward the serious,
willful or repeat cases wherein the employer has not
voluntarily abated effectively isolates the meaningful
contests of the abatement order. This greatly reduces (to
4-5 months maximum) the amount of time employees are
potentially exposed to unabated, serious violations after
the citation is issued. Also, during the pilot project,
abatement occurred in the great majority of appeals that
qualified for this expedited abatement project, resulting
in only one actual hearing during five months of the pilot
project. Thus, the existence of the expedited abatement
procedure motivates employers to abate even if they contest
the underlying violation. This greatly increases the
safety of workers in California but does so with the least
impact on the regulated community and at the least cost to
the Board?
?The benefits of this regulatory addition are that serious,
willful, and repeat violations, wherein abatement has not
occurred, will be processed within 120 days of the filing
of the appeal, and as proven by the pilot program
undertaken by the Appeals Board in 2009, many employers
will elect to voluntarily abate the condition during the
pendency of the appeal to avoid the rapid processing of the
case."
Recent Washington State Legislation
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The author of this bill notes that legislation was signed into
law in April 2011 in the State of Washington that requires
employers to correct serious safety violations during any appeal
of a citation issued by the Washington Department of Labor and
Industries.
Recent Related Legislation
This bill is similar, but not identical to AB 1165 (Skinner)
from 2013. AB 1165 was vetoed by Governor Brown, who stated the
following in his veto message:
"I share the author's concern that workplace safety risks
need to be abated quickly and not delayed during the
appeals process.
Unfortunately, this measure would require the creation of a
separate hearing process at the Division of Occupational
Safety and Health - duplicating an expedited Cal/OSHA
Appeals Board process which was recently adopted.
I am directing Cal/OSHA to consult with the author to make
sure the Appeals Board process is working as intended and,
if necessary, to recommend any additional administrative or
regulatory actions that may be needed."
Abatement Issues Raised in Recent Oversight Hearing of Workplace
Fatalities Involving BART
On November 7, 2013, this Committee conducted an oversight
hearing on workplace safety issues and the San Francisco Bay
Area Rapid Transit District (BART) following an October incident
in which two employees were struck and killed by a train during
track maintenance performing work under a BART workplace policy
known as "simple approval," which governs employees performing
work on or near tracks. The "simple approval" procedure was an
issue in a 2001 fatality of a BART employee, and a subsequent
2008 fatality. Following the 2008 incident, DOSH issued a
number of citations to BART, including citations over the use of
the "simple approval" procedure. Those citations were still
being litigated at the time of the Committee hearing.
In light of the fatality incidents that preceded the October
incident, as well as the prior DOSH enforcement activity,
concerns were expressed that this event highlighted flaws in the
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current abatement process that may jeopardize the health and
safety of workers.
At the time of the hearing, one of the sponsors of the
aforementioned AB 1165 (Worksafe) commented that improvements to
the abatement process, had they been adopted in time, may have
prevented the recent incident that occurred on October 19:
"Having a law like AB 1165 in place would have prevented
recalcitrant employers like BART from using the system to
delay fixing serious hazards. If it had been around in
2008, BART would have long ago been required to develop a
safer approach to protect people working on train lines,
and Chris Sheppard and Laurence Daniels might still be
alive today."<1>
ARGUMENTS IN SUPPORT :
According to the author, this bill ensures that unsafe
conditions in the workplace get corrected in a timely manner and
puts employee safety first. Existing law empowers DOSH to cite
an employer if, upon inspection, DOSH believes that the employer
has violated safety laws, or regulations. DOSH citations
include an order to fix ("abate") the hazardous conditions and a
deadline to abate. An employer may appeal citations from DOSH.
During the appeal, existing law stays all abatement until the
appeal is resolved. The author contends that, in practice, many
employers use the appeals process to delay abatement. Appeals
can last for months or years after the original citation is
issued. Therefore, this bill requires an employer to abate the
most serious workplace hazards, as required by DOSH, even during
an employer's appeal.
The sponsor of this measure, the State Building and Construction
Trades Council of California, argues that this bill will
increase worker safety by requiring certain workplace safety
hazards to be fixed in a timely fashion. They state that under
the current process there could be (and have been) unsafe
conditions that have persisted in workplaces simply because an
employer has exercised their right to an appeal. Employers
should certainly have the right to appeal but not at the expense
of the safety and health of workers at a place of employment
that has had a dangerous condition uncovered by DOSH.
---------------------------
<1> http://www.worksafe.org/2013/10/when-hazards-go-unfixed.html
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ARGUMENTS IN OPPOSITION :
Opponents, including the California Chamber of Commerce, oppose
this bill and argue that it proposes a costly double-appeal
process that presumes guilt for employers, undermines due
process with regards to citations for workplace safety
violations and is unnecessary in light of recently adopted
regulations for an expedited appeals process for these
situations.
Opponents contend that this bill requires employers to abate
safety hazards for which they have been cited prior to
resolution of the appeal. In other words, while the employer
exercises its right to contest the existence of an alleged
violation, DOSH could order the employer to fix the alleged
violative condition before the Appeals Board has determined
whether a violation even exists.
They argue that the requirements for abatement are already
grounds for appealing a citation issued by DOSH. Moreover, DOSH
has authority to issue an Order Prohibiting Use where it
concludes a condition, process or piece of machinery poses an
imminent hazard to employee safety. Requiring employers to
specifically contest abatement where it would otherwise be
stayed creates two separate appeals where currently there is
one. The creation of a new ground for appeal concerning
abatement is not needed and will place an unnecessary burden on
DOSH, employers, and other parties.
REGISTERED SUPPORT / OPPOSITION :
Support
California Labor Federation, AFL-CIO
State Building and Construction Trades Council of California
(sponsor)
Opposition
Air Conditioning Trade Association
Associated Builders and Contractors of California
Associated General Contractors of California
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Associated Roofing Contractors of the Bay Area Counties, Inc.
Brawley Chamber of Commerce
Brea Chamber of Commerce
California Association of Winegrape Growers
California Automotive Business Coalition
California Chamber of Commerce
California Chapter of American Fence Association
California Construction & Industrial Materials Association
California Farm Bureau Federation
California Fence Contractors' Association
California Framing Contractors Association
California Grocers Association
California League of Food Processors
California Manufacturers and Technology Association
California Professional Association of Specialty Contractors
California Restaurant Association
California Retailers Association
Chambers of Commerce Alliance of Ventura and Santa Barbara
Desert Hot Springs Chamber of Commerce and Visitors Center
El Centro Chamber of Commerce
Engineering Contractors' Association
Flasher Barricade Association
Fullerton Chamber of Commerce
Greater Bakersfield Chamber of Commerce
Lake Tahoe South Shore Chamber of Commerce
Marin Builders Association
National Federation of Independent Business
Oxnard Chamber of Commerce
Palm Desert Area Chamber of Commerce
Plumbing-Heating-Cooling Contractors Association of California
Porterville Chamber of Commerce
Redondo Beach Chamber of Commerce
Residential Contractors Association
San Diego East County Chamber of Commerce
San Fernando Valley Chamber of Commerce
San Jose Chamber of Commerce
Santa Barbara Chamber of Commerce
Santa Clara Chamber of Commerce and Convention-Visitors Bureau
Simi Valley Chamber of Commerce
Southwest California Advocacy Associates
Southwest California Legislative Council
Turlock Chamber of Commerce
Valley Industry and Commerce Association
Visalia Chamber of Commerce
Walter & Prince LLP
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Western Electrical Contractors Association
Western Growers Association
Western States Petroleum Association
Western Steel Council
Wine Institute
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091