BILL ANALYSIS �
AB 1634
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CONCURRENCE IN SENATE AMENDMENTS
AB 1634 (Skinner)
As Amended August 21, 2014
Majority vote
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|ASSEMBLY: |45-28|(May 28, 2014) |SENATE: |25-10|(August 27, |
| | | | | |2014) |
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Original Committee Reference: L. & E.
SUMMARY : Enacts various provisions of law related to an
employer's obligation to abate an alleged workplace safety and
health hazard.
The Senate amendments revise this bill to provide as follows:
1)For serious violations, the Division of Occupational Safety
and Health (DOSH) shall not grant proposed modification to
civil penalties for abatement or credit for abatement unless
the employer has done any of the following:
a) Abated the violation at the time of the initial
inspection.
b) Abated the violation at the time of a subsequent
inspection prior to the issuance of a citation.
c) Submitted a signed statement under penalty of perjury
and supporting evidence when necessary to prove abatement,
as specified.
2)Whenever a serious violation is not abated at the time of the
initial or subsequent inspection, DOSH shall require the
employer to submit a signed statement "with supporting
evidence when necessary to prove abatement" that he or she has
complied with the abatement terms within the period fixed for
abatement of the violation.
3)DOSH may grant a modification to civil penalties for abatement
only if the employer has abated the violation at the time of
the initial or subsequent inspection or the statement, signed
under penalty of perjury, and supporting evidence are received
within 10 working days after the end of the period fixed for
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abatement. At no time shall the period for abatement be fixed
prior to the issuance of a citation. The submission of a
signed abatement statement shall not be considered as evidence
of a violation during an appeal.
4)The filing of a petition for, or the pendency of,
reconsideration of a final order or decision involving a
citation classified as serious, repeat serious, or willful
serious, shall not stay or suspend the requirement to abate
the hazards affirmed by the decision or order unless the
employer demonstrates by a preponderance of the evidence that
a stay or suspension of abatement will not adversely affect
the health and safety of employees. The employer must request
a stay or suspension of abatement by filing a written,
verified petition with supporting declarations within 10 days
after the issuance of the order or decision.
AS PASSED BY THE ASSEMBLY , this bill:
1)Provided 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)Provided that if a stay of abatement is requested from DOSH,
it may stay the abatement if it determines that a stay will
not adversely affect the health and safety of employees.
FISCAL EFFECT : According to the Senate Appropriations
Committee, the Department of Industrial Relations estimates that
it would incur first years costs of $765,000 and annual costs of
$635,000 (special funds) to implement the provisions of this
bill.
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
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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
raised concerns 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.
As introduced, this bill sought to address this problem by
providing 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. This bill also provided that if a stay of
abatement is requested from DOSH, it may stay the abatement if
it determines that a stay will not adversely affect the health
and safety of employees.
However, recent Senate amendments narrow the bill to address
issues that arise only during reconsideration of a decision by
OSHAB. Specifically, this bill now provides that the filing of
a petition for, or the pendency of, reconsideration of a final
order or decision involving a citation classified as serious,
repeat serious, or willful serious, shall not stay or suspend
the requirement to abate unless the employer demonstrates by a
preponderance of the evidence that a stay or suspension will not
adversely affect the health and safety of employees. The
employer must request a stay or suspension of abatement by
filing a written, verified petition with supporting declarations
within 10 days after the issuance of the order or decision.
This bill also addresses abatement credits or modifications of
penalties by requiring an employer to submit supporting evidence
regarding satisfaction of the abatement terms. Current law
requires employers to submit a signed statement under penalty of
perjury, but not necessarily supporting evidence documenting
proof of abatement.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
FN: 0005189
AB 1634
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