BILL NUMBER: AB 1127 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Steinberg
FEBRUARY 25, 1999
An act to amend Sections 98.7, 6302, 6304.5, 6308, 6309, 6315.5,
6317, 6323, 6324, 6325, 6400, 6423, 6425, 6427, 6428, 6429, 6430,
6432, and 6435 of, to add Sections 6424 and 6719 to, and to repeal
Sections 6357 and 6434 of, the Labor Code, relating to employee
safety.
LEGISLATIVE COUNSEL'S DIGEST
AB 1127, as introduced, Steinberg. Employee safety: violations.
Under existing law, any person who believes that he or she has
been discharged or otherwise discriminated against in violation of
the Labor Code under the jurisdiction of the Labor Commissioner may
file a complaint with the Division of Labor Standards Enforcement
within 30 days after the occurrence of the violation.
This bill would extend from 30 days to one year that period of
time within which a complaint may be filed with the division.
Under the California Occupational Safety and Health Act of 1973
(hereafter Act), the term "serious exposure" is defined for purposes
of establishing a violation of standards and orders of the
Occupational Safety and Health Standards Board (hereafter standards
board) governing employee safety.
This bill would include within the definition of a serious
exposure, for those purposes, any exposure in excess of an
established permissible exposure limit.
Existing law provides that the provisions of the Act have no
application to, may not be considered in, may not be admitted into,
evidence in any personal injury or wrongful death action arising
after January 1, 1972, except as between an employee and his or her
employer.
This bill instead would provide that neither the issuance of, or
failure to issue, a citation by the Division of Occupational Safety
and Health (hereafter division) has any application to, nor be
considered in, nor be admitted into, evidence in any personal injury
or wrongful death action, except as between an employee and his or
her employer. The bill also would provide that the Act and the
occupational safety and health standards and orders promulgated under
the Labor Code may have application to, may be considered in, or be
admissible into, evidence in any personal injury or wrongful death
action.
Existing law provides that if the division secures a complaint
from an employee, the employee's representative, or an employer of
the employee directly involved in an unsafe place of employment, that
his or her employment or place of employment is not safe, the
division is required to summarily investigate the complaint as soon
as possible, but not later than 3 working days after receipt of a
complaint charging a serious violation, and not later than 14 days
after receipt of a complaint charging a nonserious violation. Under
existing law the division is not required to respond to a complaint
if it determines that either the complaint is intended to willfully
harass an employer or is without reasonable basis.
This bill also would require the division to conduct those
investigations if a complaint is received by the employee's
representative, including, but not limited to, an attorney, health or
safety professional, union representative, family member, or
representative of a government agency. The bill would also provide
that the division is not required to respond to a complaint if, from
the facts stated in the complaint, it determines that the complaint
is intended to willfully harass an employer and is without any
reasonable basis.
Existing law states that all occupational safety and health
standards and orders, rules, regulations, findings, and decisions of
the division made and entered pursuant to the Act are admissible as
evidence in any prosecution for the violation of the Act.
This bill instead would provide that all occupational safety and
health standards and orders are admissible as evidence in any civil
or criminal matter.
Existing law authorizes the division to issue a citation to an
employer requiring the abatement of a violation of the Act.
This bill would prohibit a citation requiring abatement from being
stayed unless the employer establishes good cause for a stay of the
citation requiring abatement, as specified, and the division makes
specified findings pertaining to employee safety and health.
Existing law provides that if the condition of any employment or
place of employment or the operation of any machine, device,
apparatus, or equipment constitutes a serious menace to the lives or
safety of persons about it, the division may apply to the superior
court of the county in which the place of employment, machine,
device, apparatus, or equipment is located for an injunction
restraining the use or operation of the machine, device, apparatus,
or equipment until the condition is corrected. Existing law requires
an affidavit to accompany that application showing the place of
employment, machine, device, apparatus, or equipment is being
operated in violation of specified requirements and that its use or
operation constitutes a menace to the life or safety of any person
employed thereabout.
This bill would instead authorize the division to apply to the
superior court of the county in which the place of employment or
employee is located for an injunction under those circumstances. The
bill would also require the affidavit accompanying that application
to show that the use or operation of the machine, device, apparatus,
equipment, or process violates the specified requirements and
constitutes a menace to the life or safety of any person employed
thereabout or is likely to cause death, serious injury or illness, or
serious exposure to an employee.
Existing law requires every employer to furnish employment and a
place of employment that are safe and healthful for employees
therein.
This bill would define an employer to include, but not be limited
to, a person in a multiemployer place of employment who, with respect
to any other employee at the place of employment, employs the
exposed employee, creates the hazard, is responsible, by contract or
through practice, for safety and health conditions, or is responsible
for correcting the hazard.
Existing law provides that every employer, and every officer,
management official, or supervisor having direction, management,
control, or custody of any employment, place of employment, or other
employee is guilty of a misdemeanor if it, among other things,
knowingly or negligently violates any standard, order, or special
order, or any certain provisions of law, or part thereof, or
authorized by the Act, the violation of which is deemed to be a
serious violation, as defined.
This bill would instead make any corporation, limited liability
company, or person guilty of a misdemeanor under those circumstances.
The bill would also make conforming changes to other provisions of
law that impose civil and criminal penalties on employers for
violation of specified occupational safety and health requirements.
The bill would increase from $5,000 to $200,000 the maximum fine that
may be imposed for a violation of those provisions. The bill also
would increase the length of incarceration and the monetary penalties
that may be imposed for a willful or repeated violation of certain
employee safety standards that cause death to any employee, or cause
permanent or prolonged impairment of the body of any employee.
Existing law prohibits civil penalties from being assessed against
employers that are governmental agencies for violations of certain
employee safety standards.
This bill would repeal that prohibition.
Existing law requires the standards board, on or before January 1,
1995, to adopt standards for ergonomics in the workplace designed to
minimize the instances of injury from repetitive motion.
This bill would repeal that provision and instead would require
the standards board to enforce specified standards applicable to a
job, process, or operation governing the prevention of repetitive
motion injuries.
By making certain violations of employee safety standards by
employers subject to criminal penalties, the bill would impose a
state mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 98.7 of the Labor Code is amended to read:
98.7. (a) Any person who believes that he or she has been
discharged or otherwise discriminated against in violation of
any provision of this code under the jurisdiction
of the Labor Commissioner may file a complaint with the division
within 30 days one year after the
occurrence of the violation. The 30-day
one-year period may be extended for good cause. The complaint
shall be investigated by a discrimination complaint investigator in
accordance with this section. The Labor Commissioner shall establish
procedures for the investigation of discrimination complaints. A
summary of the procedures shall be provided to each complainant and
respondent at the time of initial contact. The Labor Commissioner
shall inform complainants charging a violation of Section 6310 or
6311, at the time of initial contact, of his or her right to file a
separate, concurrent complaint with the United States Department of
Labor within 30 days after the occurrence of the violation.
(b) Each complaint of unlawful discharge or discrimination shall
be assigned to a discrimination complaint investigator who shall
prepare and submit a report to the Labor Commissioner based on an
investigation of the complaint. The Labor Commissioner may designate
the chief deputy or assistant Labor Commissioner or the chief
counsel to receive and review the reports. The investigation shall
include, where appropriate, interviews with the complainant,
respondent, and any witnesses who may have information concerning the
alleged violation, and a review of any documents which may be
relevant to the disposition of the complaint. The identity of
witnesses shall remain confidential unless the identification of the
witness becomes necessary to proceed with the investigation or to
prosecute an action to enforce a determination. The investigation
report submitted to the Labor Commissioner or designee shall include
the statements and documents obtained in the investigation, and the
findings of the investigator concerning whether a violation occurred.
The Labor Commissioner may hold an investigative hearing whenever
the Labor Commissioner determines, after review of the investigation
report, that a hearing is necessary to fully establish the facts. In
the hearing the investigation report shall be made a part of the
record and the complainant and respondent shall have the opportunity
to present further evidence. The Labor Commissioner shall issue,
serve, and enforce any necessary subpoenas.
(c) If the Labor Commissioner determines a violation has occurred,
he or she shall notify the complainant and respondent and direct the
respondent to cease and desist from the violation and take such
action as is deemed necessary to remedy the violation, including,
where appropriate, rehiring or reinstatement, reimbursement of lost
wages and interest thereon, payment of reasonable attorney's fees
associated with any hearing held by the Labor Commissioner in
investigating the complaint, and the posting of notices to employees.
If the respondent does not comply with the order within 10 working
days following notification of the Labor Commissioner's
determination, the Labor Commissioner shall bring an action promptly
in an appropriate court against the respondent. If the Labor
Commissioner fails to bring an action in court promptly, the
complainant may bring an action against the Labor Commissioner in any
appropriate court for a writ of mandate to compel the Labor
Commissioner to bring an action in court against the respondent. If
the complainant prevails in his or her action for a writ, the court
shall award the complainant court costs and reasonable attorney's
fees, notwithstanding any other provision of law. Regardless of any
delay in bringing an action in court, the Labor Commissioner shall
not be divested of jurisdiction. In any such action, the court may
permit the claimant to intervene as a party plaintiff to the action
and shall have jurisdiction, for cause shown, to restrain the
violation and to order all appropriate relief. Appropriate relief
includes, but is not limited to, rehiring or reinstatement of the
complainant, reimbursement of lost wages and interest thereon, and
such any other compensation or
equitable relief as is appropriate under the circumstances of the
case. The Labor Commissioner shall petition the court for
appropriate temporary relief or restraining order unless he or she
determines good cause exists for not doing so.
(d) If the Labor Commissioner determines no violation has
occurred, he or she shall notify the complainant and respondent and
shall dismiss the complaint. The Labor Commissioner may direct the
complainant to pay reasonable attorney's fees associated with any
hearing held by the Labor Commissioner if the Labor Commissioner
finds the complaint was frivolous, unreasonable, groundless, and was
brought in bad faith. The complainant may, after notification of the
Labor Commissioner's determination to dismiss a complaint, bring an
action in an appropriate court, which shall have jurisdiction to
determine whether a violation occurred, and if so, to restrain the
violation and order all appropriate relief to remedy the violation.
Appropriate relief includes, but is not limited to, rehiring or
reinstatement of the complainant, reimbursement of lost wages and
interest thereon, and such other compensation or equitable relief as
is appropriate under the circumstances of the case. When dismissing
a complaint, the Labor Commissioner shall advise the complainant of
his or her right to bring an action in an appropriate court if he or
she disagrees with the determination of the Labor Commissioner, and
in the case of an alleged violation of Section 6310 or 6311, to file
a complaint against the state program with the United States
Department of Labor.
(e) The Labor Commissioner shall notify the complainant and
respondent of his or her determination under subdivision (c) or (d),
not later than 60 days after the filing of the complaint.
Determinations by the Labor Commissioner under subdivision (c) or (d)
may be appealed by the complainant or respondent to the Director of
Industrial Relations within 10 days following notification of the
determination. The appeal shall set forth specifically and in full
detail the grounds upon which the appealing party considers the Labor
Commissioner's determination to be unjust or unlawful, and every
issue to be considered by the director. The director may consider
any issue relating to the initial determination and may modify,
affirm, or reverse the Labor Commissioner's determination. The
director's determination shall be the determination of the Labor
Commissioner. The director shall notify the complainant and
respondent of his or her determination within 10 days of receipt of
the appeal.
(f) The rights and remedies provided by this section do not
preclude an employee from pursuing any other rights and remedies
under any other provisions of law.
SEC. 2. Section 6302 of the Labor Code is amended to read:
6302. As used in this division:
(a) "Director" means the Director of Industrial Relations.
(b) "Department" means the Department of Industrial Relations.
(c) "Insurer" includes the State Compensation Insurance Fund and
any private company, corporation, mutual association, and reciprocal
or interinsurance exchange, authorized under the laws of this state
to insure employers against liability for compensation under this
part and under Division 4 (commencing with Section 3201), and any
employer to whom a certificate of consent to self-insure has been
issued.
(d) "Division" means the Division of Occupational Safety and
Health.
(e) "Standards board" means the Occupational Safety and Health
Standards Board, within the department.
(f) "Appeals board" means the Occupational Safety and Health
Appeals Board, within the department.
(g) "Aquaculture" means a form of agriculture as defined in
Section 17 of the Fish and Game Code.
(h) "Serious injury or illness" means any injury or illness
occurring in a place of employment or in connection with any
employment which requires inpatient hospitalization for a period in
excess of 24 hours for other than medical observation or in which an
employee suffers a loss of any member of the body or suffers any
serious degree of permanent disfigurement, but does not include any
injury or illness or death caused by the commission of a
violation of the Penal Code violation ,
except the violation of Section 385 of the Penal Code, or an accident
on a public street or highway.
(i) "Serious exposure" means any exposure of an employee to a
hazardous substance when the exposure occurs as a result of an
incident, accident, emergency, or exposure over time and is in a
degree or amount sufficient to create a substantial probability that
death or serious physical harm in the future could result from the
exposure. Any exposure in excess of an established permissible
exposure limit is a serious exposure.
(j) "Serious physical harm" means any of the following:
(1) Any injury involving a temporary, prolonged, or permanent
impairment of the body in which any part of the body is rendered
functionally useless or substantially reduced in efficiency on or off
the job.
(2) Any illness involving a condition that may shorten life or
significantly reduce physical or mental efficiency by inhibiting the
normal function of a part of the body.
(3) Any injury or illness that results in temporary or permanent
disability.
SEC. 3. Section 6304.5 of the Labor Code is amended to read:
6304.5. It is the intent of the Legislature that the provisions
of this division shall only be , and the
occupational safety and health standards and orders promulgated under
this code, are applicable to proceedings against employers
brought pursuant to the provisions of Chapter 3 (commencing
with Section 6500) and 4 (commencing with Section 6600) of Part 1 of
this division for the exclusive purpose of maintaining and
enforcing employee safety.
Neither this division nor any part of this division
the issuance of, or failure to issue, a citation by
the division shall have any application to, nor be considered
in, nor be admissible into, evidence in any personal injury or
wrongful death action arising after the operative date of
this section , except as between an employee and his
or her own employer. This division and the occupational
safety and health standards and orders promulgated under this code
may have application to, be considered in, or be admissible into,
evidence in any personal injury or wrongful death action.
SEC. 4. Section 6308 of the Labor Code is amended to read:
6308. The division, in In enforcing
this division, occupational safety and health standards
and , orders , and special
orders , the division may do any of the following:
(a) Declare and prescribe what the
safety devices, safeguards, or other means or methods of protection
that are well adapted to render the employees of every
employment and place of employment safe as required by law or lawful
order.
(b) Enforce Section 25910 of the Health and Safety Code and
standards and orders adopted by the standards board pursuant to
Chapter 6 (commencing with Section 140) of Division 1 of the Labor
Code, for the installation, use, maintenance, and operation of
reasonable uniform safety devices, safeguards, and other means or
methods of protection, which are necessary to carry out all laws and
lawful standards or special orders relative to the protection of the
life and safety of employees in employments and places of employment.
(c) Require the performance of any other act which
that is reasonably necessary for the protection
of the life and safety of the employees in employments and places of
employment reasonably demands .
An employer may request a hearing on a special order or action
ordered pursuant to this section, at which the employer, owner, or
any other person may appear. The appeals board shall conduct the
hearing at the earliest possible time.
All orders, rules, regulations, findings, and decisions of the
division made or entered under this part, except special orders and
action orders, may be reviewed by the Supreme Court and the courts of
appeal as may be provided by law.
SEC. 5. Section 6309 of the Labor Code is amended to read:
6309. Whenever If the division
learns or has reason to believe that any employment or place of
employment is not safe or is injurious to the welfare of any
employee, it may, of its own motion, or upon complaint, summarily
investigate the same employment or place of
employment , with or without notice or hearings. However,
when if the division secures a
complaint from an employee, the employee's representative,
including, but not limited to, an attorney, health or safety
professional, union representative, family member, or representative
of a government agency, or an employer of an employee directly
involved in an unsafe place of employment, that his or her employment
or place of employment is not safe, it shall, with or without notice
or hearing, summarily investigate the same
employment or place of employment as soon as possible, but not
later than three working days after receipt of a complaint charging a
serious violation, and not later than 14 calendar days after receipt
of a complaint charging a nonserious violation. The division
shall attempt to determine the period of time in the future that the
complainant believes the unsafe condition may continue to exist, and
shall allocate inspection resources so as to respond first to those
situations in which time is of the essence. For purposes of
this section, a complaint shall be deemed to allege a serious
violation if the division determines that the complaint charges that
there is a substantial probability that death or serious physical
harm could result from a condition which exists, or from one or more
practices, means, methods, operations, or processes which have been
adopted or are in use in a place of employment. All other complaints
shall be deemed to allege nonserious violations. The division may
enter and serve any necessary order relative thereto. The division
is not required to respond to any complaint within this period
where if , from the facts stated in the
complaint, it determines that the complaint is intended to willfully
harass an employer or and is without
any reasonable basis.
The division shall keep complete and accurate records of any
complaints, whether verbal or written, and shall inform the
complainant, whenever his or her identity is known, of any action
taken by the division in regard to the subject matter of the
complaint, and the reasons for the action. The records of the
division shall include the dates on which any action was taken on the
complaint, or the reasons for not taking any action on the
complaint. The division shall, pursuant to authorized regulations,
conduct an informal review of any refusal by a representative of the
division to issue a citation with respect to any alleged violation.
The division shall furnish the employee or the representative of
employees requesting the review a written statement of the reasons
for the division's final disposition of the case.
The name of any person who submits to the division a complaint
regarding the unsafeness of an employment or place of employment
shall be kept confidential by the division , unless that
person requests otherwise.
The requirements of this section shall not relieve the division of
its requirement to inspect and assure that all places of employment
are safe and healthful for employees. The division shall maintain
the capability to receive and act upon complaints at all times.
SEC. 6. Section 6315.5 of the Labor Code is amended to read:
6315.5. All occupational safety and health standards and orders
, rules, regulations, findings, and decisions of the
division made and entered pursuant to this part are
admissible as evidence in any prosecution for the violation
of any provision of this part civil or criminal matter
, and shall, in every such prosecution
any such action , be presumed to be reasonable and lawful and
to fix a reasonable and proper standard and
requirement of safety unless, prior to the institution of the
prosecution for such violation action ,
proceedings for a hearing on a special order are instituted, or a
petition is filed under Section 11426 of the Government Code.
SEC. 7. Section 6317 of the Labor Code is amended to read:
6317. (a) If, upon inspection or investigation, the
division believes that an employer has violated Section 25910 of the
Health and Safety Code or , any
standard, rule, order, or regulation established pursuant to Chapter
6 (commencing with Section 140) of Division 1 of the Labor Code, or
any provision of this division, including any standard,
rule, order, or regulation established pursuant to this part
division , it shall with reasonable promptness
issue a citation to the employer. Each citation shall be in writing
and shall describe with particularity the nature of the violation,
including a reference to the provision of the code, standard, rule,
regulation, or order alleged to have been violated. In addition, the
citation shall fix a reasonable time for the abatement of the
alleged violation. The period specified for abatement shall
does not commence running
until the date the citation or notice is received by certified mail
and the certified mail receipt is signed, or if not signed, the date
the return is made to the post office. If the division officially
and directly delivers the citation or notice to the employer, the
period specified for abatement shall commence running
commences on the date of the delivery.
A citation requiring abatement may not be stayed by the filing of
an appeal, except as provided in this subdivision. Upon an
application accompanied by declarations and exhibits, submitted under
penalty of perjury, an employer may petition the appeals board for a
stay of abatement pending appeal at the time the employer files a
notice of appeal. The employer shall have the burden of establishing
good cause for a stay of the citation requiring abatement. Within
five business days of the date of receipt of the notice of appeal and
request for stay of abatement pending appeal, the division may
respond to the employer's declarations and exhibits, and the division
also may request an expedited hearing. Within 10 business days, the
appeals board shall consider the evidence submitted by the employer
and the division, and shall consider oral testimony if the division
requests an expedited hearing, and upon all the evidence and
proceedings may grant a stay of abatement pending appeal if it finds
that (1) no employee may be exposed to the unsafe or unhealthful
condition or (2) that the condition is not likely to cause death,
serious injury or illness, or serious exposure to any employee.
(b) A "notice" in lieu of citation may be issued with
respect to violations found in an inspection or investigation which
meet either of the following requirements:
(1) The violations do not have a direct relationship upon the
health or safety of an employee.
(2) The violations do not have an immediate relationship to the
health or safety of an employee, and are of a general or regulatory
nature. A notice in lieu of a citation may be issued only if the
employer agrees to correct the violations within a reasonable time,
as specified by the division, and agrees not to appeal the finding of
the division that the violations exist. A notice issued pursuant to
this paragraph shall have the same effect as a citation for purposes
of establishing repeat violations or a failure to abate. Every
notice shall clearly state the abatement period specified by the
division, that the notice may not be appealed, and that the notice
has the same effect as a citation for purposes of establishing a
repeated violation or a failure to abate. The employer shall
indicate agreement to the provisions and conditions of the notice by
his or her signature on the notice.
Under no circumstances shall a
A notice may not be issued in lieu of a citation
if the violations are serious, repeated, willful, or arise from a
failure to abate.
The director shall prescribe guidelines for the issuance of these
notices.
The division may impose a civil penalty against an employer as
specified in Chapter 4 (commencing with Section 6423) of this part.
A notice in lieu of a citation may not be issued if the number of
first instance violations found in the inspection (other than
serious, willful, or repeated violations) is 10 or more violations.
No citation or notice shall be issued by the division for a given
violation or violations after six months have elapsed since
occurrence of the violation.
The director shall prescribe procedures for the issuance of a
citation or notice.
The division shall prepare and maintain records capable of
supplying an inspector with previous citations and notices issued to
an employer.
SEC. 8. Section 6323 of the Labor Code is amended to read:
6323. If the condition of any employment or place of employment
or the operation of any machine, device, apparatus, or
equipment , or process constitutes a serious
menace to the lives or safety of persons about it, the division may
apply to the superior court of the county in which such
the place of employment , machine,
device, apparatus, or equipment
employee is situated, for an injunction restraining the use or
operation thereof until such the
condition is corrected.
SEC. 9. Section 6324 of the Labor Code is amended to read:
6324. The An application to the
superior court for an injunction shall be accompanied by
an affidavit showing that such a
place of employment, machine, device, apparatus, or
equipment , or process is being operated in
violation of a safety order or standard, or in violation of Section
25910 of the Health and Safety Code, and that such
the use or operation constitutes a menace to the life or
safety of any person employed thereabout and
or is likely to cause death, serious injury or illness, or serious
exposure to an employee. The affidavit shall be accompanied by
a copy of the order or standard applicable thereto is
. The application and affidavit are a
sufficient prima facie showing to warrant, in the discretion of the
court, the immediate granting of a temporary restraining order. No
bond shall be required from the division or any other state or
local prosecutor as a prerequisite to the granting of any
restraining order.
SEC. 10. Section 6325 of the Labor Code is amended to read:
6325. When If , in the opinion of
the division, a place of employment, machine, device, apparatus, or
equipment , or any part thereof , is in a
dangerous condition, or if a machine, device, apparatus, or
piece of equipment is not properly guarded or is dangerously
placed so as to constitute an imminent hazard to employees, or
is likely to cause death, serious injury or illness, or serious
exposure to an employee, entry therein, or the use thereof, as
the case may be, shall be prohibited by the division, and a
conspicuous notice to that effect shall be attached thereto
posted thereon . Such
The prohibition of use shall be limited to the immediate area
in which the imminent hazard or condition exists, and the
division shall not prohibit any entry in or use of a place of
employment, machine, device, apparatus, or equipment, or any part
thereof, which is outside such the area
of imminent hazard or condition . Such
The notice shall not
only may be removed except by an authorized
representative of the division , nor until if
the place of employment, machine, device, apparatus, or
equipment is made safe and the required safeguards or safety
appliances or devices are provided. This section shall
does not prevent the entry or use with the
division's knowledge and permission for the sole purpose of
eliminating the dangerous conditions.
SEC. 11. Section 6357 of the Labor Code is repealed.
6357. On or before January 1, 1995, the Occupational Safety and
Health Standards Board shall adopt standards for ergonomics in the
workplace designed to minimize the instances of injury from
repetitive motion.
SEC. 12. Section 6400 of the Labor Code is amended to read:
6400. Every employer shall furnish employment and a place of
employment which that are safe and
healthful for the employees therein. "Employer" includes, but is
not limited to, a person in a multiemployer place of employment who,
with respect to any other employee at the place of employment, does
any of the following:
(a) Employs the exposed employee.
(b) Creates the hazard.
(c) Is responsible, by contract or through practice, for safety
and health conditions.
(d) Is responsible for correcting the hazard.
SEC. 13. Section 6423 of the Labor Code is amended to read:
6423. Except where another penalty is specifically
provided, every employer, and every officer, management official, or
supervisor Any corporation, limited liability company,
or person having direction, management, control, or custody of
any employment, place of employment, or of any other
employee, who does any of the following shall be
is guilty of a misdemeanor:
(a) Knowingly or negligently violates any standard, order, or
special order, or any provision of this division, or of any part
thereof in, or authorized by, this part the violation of which is
deemed to be a serious violation pursuant to Section 6432.
(b) Repeatedly violates any standard, order, or special order, or
provision of this division, or any part thereof in, or authorized by,
this part, which repeated violation creates a real and apparent
hazard to employees.
(c) Fails or refuses to comply, after notification and expiration
of any abatement period, with any such standard, order, special
order, or provision of this division, or any part thereof, which
failure or refusal creates a real and apparent hazard to employees.
(d) Directly or indirectly, knowingly induces another to
do any of the above commit any of the acts in
subdivisions (a), (b), or (c) .
Any violation of the provisions of this section is punishable by
imprisonment in the a county jail
not exceeding six months for a term not
exceeding one year , or by a fine not exceeding five
two hundred thousand dollars ($5,000)
($200,000) , or by both that imprisonment
and fine. If the defendant is a corporation or a limited liability
company, the fine shall not be less that one hundred thousand dollars
($100,000) but may not exceed one million dollars ($1,000,000)
.
SEC. 14. Section 6424 is added to the Labor Code, to read:
6424. For purposes of construing this chapter, the following
rules of construction apply:
(a) To the extent that a word or term of this chapter is defined
in Section 7 of the Penal Code, the definitions of Section 7 of the
Penal Code govern the interpretation of that word of term.
(b) In addition to the definition of "negligence" in Section 7 of
the Penal Code, any act or failure to act that is inconsistent with
any standard, special order, or any provision of this division or of
Section 25910 of the Health and Safety Code, constitutes evidence of
negligence.
(c) An "employer" includes, but is not limited to, a person in a
multiemployer place of employment who, with respect to any other
employee at the place of employment, does any of the following:
(a) Employs the exposed employee.
(b) Creates the hazard.
(c) Is responsible, by contract or through practice, for safety
and health conditions.
(d) Is responsible for correcting the hazard.
SEC. 15. Section 6425 of the Labor Code is amended to read:
6425. Any employer, and every employee
(a) Every corporation, limited liability company, or person
having direction, management, control, or custody of any employment,
place of employment, or of any other employee, who
willfully violates any occupational safety or health standard, order,
or special order, or any provision of this division or of
Section 25910 of the Health and Safety Code, and that violation
caused death to any employee, or caused permanent or prolonged
impairment of the body of any employee, shall, upon
conviction, be punished by a fine of not more than seventy thousand
dollars ($70,000), by imprisonment for not more than six months, or
by both; except that if the conviction is for a violation committed
after a first conviction of the person, punishment shall be by a fine
not to exceed seventy thousand dollars ($70,000), but in no case
less than thirty-five thousand dollars ($35,000), by imprisonment for
not more than one year, or by both. Nothing in this section shall
is guilty of a public offense punishable by
imprisonment in a county jail for a term not exceeding one year, or
by a fine not exceeding two hundred fifty thousand dollars
($250,000), or by both that imprisonment and fine; or by imprisonment
in the state prison for 16 months, or two or three years, or by a
fine of not less than two hundred fifty thousand dollars ($250,000)
but not exceeding one million dollars ($1,000,000), or by both that
imprisonment and fine; and in either case, if the defendant is a
corporation or a limited liability company, the fine shall not be
less than five hundred thousand dollars ($500,000) but may not exceed
five million dollars ($5,000,000).
(b) If the conviction is for a violation committed after a first
conviction of the person or corporation for any crime involving a
violation of occupational safety and health provisions, punishment
shall be by imprisonment in the state prison for two, three, or four
years, or by a fine no less than five hundred thousand dollars
($500,000) but not exceeding five million dollars ($5,000,000), or by
both that fine and imprisonment, but if the defendant is a
corporation or a limited liability company, the fine shall not be
less than one million dollars ($1,000,000) but may not exceed ten
million dollars ($10,000,000).
(c) This section does not prohibit a prosecution under
Section 192 of the Penal Code.
SEC. 16. Section 6427 of the Labor Code is amended to read:
6427. Any employer corporation or limited
liability company, and every employer who creates a hazard, controls
the work or the premises, or is responsible for correction of a
hazard who violates any occupational safety or health standard,
order, or special order, or any provision of this division or
of Section 25910 of the Health and Safety Code, and the
violation is specifically determined not to be of a serious nature,
may be assessed a civil penalty of up to seven thousand dollars
($7,000) for each violation.
SEC. 17. Section 6428 of the Labor Code is amended to read:
6428. Any employer corporation or limited
liability company, and every employer who creates a hazard, controls
the work or the premises, or is responsible for correction of a
hazard who violates any occupational safety or health standard,
order, or special order, or any provision of this division or
of Section 25910 of the Health and Safety Code, if that
violation is a serious violation, shall be assessed a civil penalty
of up to seven twenty-five thousand
dollars ($7,000) ($25,000) for each
violation. Employers who do not have an operative injury prevention
program shall receive no adjustment for good faith of the employer or
history of previous violations as provided in paragraphs (3) and (4)
of subdivision (c) of Section 6319.
SEC. 18. Section 6429 of the Labor Code is amended to read:
6429. (a) Any corporation or limited liability
company who creates a hazard, controls the work or the premises, or
is responsible for correction of a hazard, and every employer
who willfully or repeatedly violates any occupational safety or
health standard, order, or special order, or any provision of
this division or of Section 25910 of the Health and Safety
Code, may be assessed a civil penalty of not more than seventy
thousand dollars ($70,000) for each violation, but in no case less
than five thousand dollars ($5,000) for each willful violation.
(b) Any corporation or limited liability company, who creates a
hazard, controls the work or the premises, or is responsible for
correction of the hazard, and every employer who repeatedly violates
any occupational safety or health standard, order, or special order,
or any provision of this division or of Section 25910 of the Health
and Safety Code, shall not receive any adjustment of a penalty
assessed pursuant to this section on the basis of the regulations
promulgated pursuant to subdivision (c) of Section 6319 pertaining to
the good faith of the employer or the history of previous violations
of the employer.
(c) Any past violation by any corporation or limited liability
company, and every employer who creates a hazard, controls the work
or the premises, or is responsible for correction of the hazard,
occurring anywhere within the state within the previous five years of
any occupational safety or health standard, order, or special order,
or any provision of this division or of Section 25910 of the Health
and Safety Code, shall be used to establish whether a current
violation is a repeat violation, and shall constitute evidence of
willfulness for purposes of this section.
(d) The division shall preserve and maintain records of its
investigations and inspections and citations for a period of not less
than seven years.
SEC. 19. Section 6430 of the Labor Code is amended to read:
6430. (a) Any corporation or limited liability company who
creates a hazard, controls the work or the premises, or is
responsible for the correction of a hazard, and every employer
who fails to correct a violation of any occupational safety or health
standard, order, or special order, or any provision of this
division or of Section 25910 of the Health and Safety Code,
within the period permitted for its correction shall be assessed a
civil penalty of not more than seven
twenty-five thousand dollars ($7,000)
($25,000) for each day during which the failure or violation
continues.
(b) Notwithstanding subdivision (a), for any employer who submits
a signed statement affirming compliance with the abatement terms
pursuant to Section 6320, and is found upon a reinspection not to
have abated the violation, any adjustment to the civil penalty based
on abatement shall be rescinded and the additional civil penalty
assessed for failure to abate shall not be adjusted for good faith of
the employer or history of previous violations as provided in
paragraphs (3) and (4) of subdivision (c) of Section 6319.
(c) Notwithstanding subdivision (a), any corporation or limited
liability company and every employer who creates a hazard, controls
the work or the premises, or is responsible for correction of a
hazard, who submits a signed statement affirming compliance with the
abatement terms pursuant to subdivision (b) of Section 6320, and is
found not to have abated the violation, is guilty of a public offense
punishable by imprisonment in a county jail for a term not exceeding
one year, or by a fine not exceeding one hundred thousand dollars
($100,000), or by both that fine and imprisonment; or by imprisonment
in the state prison for 16 months, or two or three years, or by a
fine not less than fifty thousand dollars ($50,000) but not exceeding
two hundred fifty thousand dollars ($250,000), or by both that fine
and imprisonment; and in either case, if the defendant is corporation
or a limited liability company the fine shall be not less than one
hundred thousand dollars ($100,000) but not exceed one million
dollars ($1,000,000).
SEC. 20. Section 6432 of the Labor Code is amended to read:
6432. (a) As used in this part, a "serious violation" shall be
deemed to exist in a place of employment if there
any of the following conditions exist:
(1) There is a substantial probability that death or serious
physical harm could result from a serious
violation, including, but not limited to, any of the following
circumstances:
(A) An exposure exceeding an established permissible
exposure limit or a condition which exists, or from
.
(B) The existence of an unsafe or unhealthful condition.
(C) The existence of one or more practices, means, methods,
operations, or processes which have been adopted or are in use, in
the place of employment unless .
(2) The violation results in occupational injuries or illnesses
that are indicative of a condition that may result in serious
physical harm.
(b) Notwithstanding subdivision (a), a serious violation shall not
be deemed to exist if the employer can demonstrate that
it did not, and could not with the exercise of reasonable
diligence, know of the presence of the violation.
(b)
(c) As used in this section, "substantial probability"
refers not to the probability that an accident or exposure will occur
as a result of the violation, but rather to the probability that
death or serious physical harm will result assuming an accident or
exposure occurs as a result of the violation. A substantial
probability of serious injury also shall exist if any single serious
injury has been caused by the violation.
SEC. 21. Section 6434 of the Labor Code is repealed.
6434. The civil penalties provided for in this chapter shall not
be assessed against employers that are governmental entities.
SEC. 22. Section 6435 of the Labor Code is amended to read:
6435. (a) Any corporation or limited
liability company and every employer who creates a hazard,
controls the work or premises, or is responsible for correction of a
hazard, who violates any of the requirements of Chapter 6
(commencing with Section 6500) of this part shall be assessed a civil
penalty under the appropriate provisions of Sections 6427 to 6430,
inclusive.
(b) This section shall become inoperative on January 1, 1987, and
shall remain inoperative until January 1, 1991, at which time it
shall become operative, unless a later enacted statute, which becomes
effective on or before January 1, 1991, deletes or extends that
date.
SEC. 23. Section 6719 is added to the Labor Code, to read:
6719. (a) The Legislature finds and declares all of the
following:
(1) In 1993, the Legislature adopted Section 6357 to require the
Occupational Safety and Health Standards Board, on or before January
1, 1995, to adopt standards for ergonomics in the workplace designed
to minimize the instances of injury from repetitive motion.
(2) The standards board failed to follow this mandate, by failing
to adopt ergonomics standards by January 1, 1995, and then by
adopting a regulation concerning ergonomics that was not designed to
minimize the instances of injury from repetitive motion because it
contained exemptions and loopholes.
(3) The ergonomics regulation adopted by the standards board was
held to be invalid in part by a court because it did not fulfill the
mandate of Section 6357, and litigation concerning the validity of
the regulation is still pending.
(4) The purpose of this section is to mandate a minimum standard
for ergonomics in the workplace so as to effectuate the original
intent and purpose of Section 6357, as adopted in 1993, and to avoid
continuing litigation.
(b) On and after January 1, 2000, the division shall enforce this
section through all appropriate means, including, but not limited to,
issuing citations and penalties for any violation of this section
pursuant to Section 6317. By January 15, 2000, the standards board
also shall enforce the following requirements pertaining to a job,
process, or operation if any of the following exists:
(1) A repetitive motion injury (RMI) has occurred to one or more
employees engaged in the job, process, or operation. For the
purposes of this section, an RMI is an injury or illness that results
in any of the following:
(A) Fatalities, regardless of the time between the injury and
death, or the length of the illness.
(B) Lost workday cases, other than fatalities, that result in lost
workdays.
(C) Nonfatal cases without lost workdays which result in transfer
to another job or termination of employment, or require medical
treatment, other than first aid, or involve loss of consciousness or
restriction of work or motion. The injuries or illnesses specified
in this subparagraph also includes any diagnosed occupational
illnesses which are reported to the employer but are not classified
as fatalities or lost workday cases.
(2) A pattern of symptoms or physical signs of work-related RMIs
among one or more employees engaged in a job, process, or operation
has been identified or reported.
(3) One or more employees are exposed to hazards causing or
contributing to or likely to cause or contribute to RMI.
(4) One or more employees of an employer are in a work activity
substantially similar to a job, process, or operation where an RMI or
pattern of symptoms of an RMI has been identified or reported at the
employer's place of employment. "Substantially similar work
activity" means that one or more employees are performing similar
tasks, including, but not limited to, word processing, assembly, or
loading.
(c) Each employer subject to this section shall establish and
implement a program designed to prevent and minimize RMIs. The
program shall include a worksite evaluation, control of exposures
which are causing or contributing to or likely to cause or contribute
to RMIs, and training of employees.
(1) Each job, process, or operation covered by this section, or a
representative number of those jobs, processes, or operations, shall
be evaluated for exposures that are causing or contributing to or
likely to cause or contribute to RMIs.
(2) Any exposures that are causing or contributing to or likely to
cause or contribute to RMIs shall be corrected in a timely manner
or, if not capable of being corrected, shall be minimized to the
extent feasible. The employer shall utilize a hierarchy of controls,
beginning with engineering controls, such as work station redesign,
adjustable fixtures, or tool redesign, and administrative controls
such as job rotation, work pacing, or work breaks.
(3) Employees and supervisors performing or supervising a job,
process, or operation to which this section applies shall be provided
training that includes an explanation of at least the following:
(A) The employer's program.
(B) Exposures that have been associated with RMIs.
(C) Symptoms and consequences of injuries caused by repetitive
motion.
(D) The importance of reporting symptoms and injuries to the
employer.
(E) Methods used by the employer to prevent and minimize RMIs.
(d) Regulations adopted pursuant to this section are expressly
exempted from the provisions of Article 5 (commencing with Section
11346) of Chapter 3.5 of Part 1 of Division 3 of Title 2 of the
Government Code.
(e) This section does not prohibit the Occupational Safety and
Health Standards Board from acting pursuant to its authority to
promulgate regulations in Section 142.3 to amend its regulations if
the amendments do not reduce the protection with respect to RMIs
afforded workers by the standard set forth in this section.
SEC. 24. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.