BILL NUMBER: AB 1127 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 25, 1999
AMENDED IN SENATE AUGUST 23, 1999
AMENDED IN SENATE AUGUST 16, 1999
AMENDED IN SENATE JULY 12, 1999
AMENDED IN SENATE JUNE 29, 1999
AMENDED IN ASSEMBLY JUNE 1, 1999
AMENDED IN ASSEMBLY MAY 18, 1999
INTRODUCED BY Assembly Member Steinberg
FEBRUARY 25, 1999
An act to amend Sections 98.7, 6304.5, 6308, 6309, 6317, 6323,
6324, 6325, 6400, 6423, 6425, 6427, 6428, 6429,
6430, and 6432 of, to add Sections 6319.1 and 6719 to, and to repeal
Section 6434 of, the Labor Code, relating to employee safety.
LEGISLATIVE COUNSEL'S DIGEST
AB 1127, as amended, 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.
Existing law provides that the provisions of the California
Occupational Safety and Health Act of 1973 (hereafter the act) have
no application to, may not be considered in, and 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 the division) has any application to, nor may
be considered in, nor may 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 Sections 452
and 669 of the Evidence Code would apply to the act and the
occupational safety and health standards and orders promulgated under
the Labor Code in the same manner as any other statute, ordinance,
or regulation.
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
additionally 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, 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 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 if the division makes specified findings pertaining to
employee safety and health, except that the employer would be
authorized to file a motion requesting that the period for abatement
be stayed during the appeal proceedings.
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 that 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 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 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 of certain provisions of law, or part thereof,
authorized by the act, the violation of which is deemed to be a
serious violation, as defined.
This 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 $15,000 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. The
bill also would authorize a court to impose a fine in an amount less
than certain minimums specified in the bill if the court finds that
it is in the interest of justice to do so and states its findings and
reasons on the record.
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 Occupational Safety and Health Standards
Board (hereafter 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 reaffirm the standards board's continuing duty to
adopt those standards.
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 this
code under the jurisdiction of the Labor Commissioner may file a
complaint with the division within one year after the occurrence of
the violation. The 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
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 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, and the occupational safety and health standards
and orders promulgated under this code, are applicable to proceedings
against employers for the exclusive purpose of maintaining and
enforcing employee safety.
Neither 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, except as between an employee and his or her own employer.
Sections 452 and 669 of the Evidence Code shall apply to this
division and to occupational safety and health standards adopted
under this division in the same manner as any other statute,
ordinance, or regulation.
SEC. 3. Section 6308 of the Labor Code is amended to read:
6308. In enforcing this division, occupational safety and health
standards, orders, and special orders, the division may do any of the
following:
(a) Declare and prescribe 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 employment and places of employment.
(c) Require the performance of any other act that is reasonably
necessary for the protection of the life and safety of the employees
in employment and places of employment.
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. 4. Section 6309 of the Labor Code is amended to read:
6309. 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 with or without notice or
hearings. However, 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,
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 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. When a complaint charging a serious violation is
received from a state or local prosecutor, the division shall
summarily investigate the employment or place of employment within 24
hours of receipt of the complaint. 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, from
the facts stated in the complaint, it determines that the complaint
is intended to willfully harass an employer or 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. 5. Section 6317 of the Labor Code is amended to read:
6317. If, upon inspection or investigation, the division believes
that an employer has violated Section 25910 of the Health and Safety
Code, any standard, rule, order, or regulation established pursuant
to Chapter 6 (commencing with Section 140) of Division 1 of
the Labor Code, any provision of this division relating to the health
and safety of employees , or any standard, rule, order, or
regulation established pursuant to this part, 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 does not commence 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 commences on the date of the delivery.
A "notice" in lieu of citation may be issued with respect to
violations found in an inspection or investigation that 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.
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). 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.
A citation or notice may not be issued by the division for a
given violation or violations violation
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. 6. Section 6319.1 is added to the Labor Code, to read:
6319.1. (a) Notwithstanding any other provision of law, if the
division, or its authorized representative, determines that an
alleged violation is serious and presents such a substantial risk to
the safety or health of employees that the initiation of an appeal by
the employer should not suspend the running of the period for
abatement of that violation, the citation issued pursuant to Section
6317 shall include a statement of that determination.
(b) (1) If a citation issued pursuant to Section 6317 includes a
statement of the division's determination as provided in subdivision
(a), the employer may, concurrent with the timely initiation of
appeal proceedings as to the alleged violation, file a motion
requesting that the running of the period for abatement of that
violation be suspended during the appeal proceedings. The appeals
board shall conduct an expedited hearing on the employer's motion
within 15 days of the filing of the motion and shall, in deciding
that motion, balance the extent of any irreparable injury to the
employer as a result of abatement of the alleged violation during the
pendency of appeal proceedings, and the nature and degree of risk
posed to employees by the employer's failure to immediately abate
that violation. The appeals board shall also consider the likely
success of the employer's appeal with respect to the alleged
violation, whether that appeal is initiated in good faith and not for
the purpose of delay or the avoidance of penalties, and whether the
division's determination is unreasonable under the circumstances. At
the hearing, the division shall have the burden of establishing that
during the pendency of the appeal, the duty of an employer to abate
a violation should not be suspended due to the initiation of an
appeal because a substantial risk to the safety or health of employes
continues to exist. If the division meets that burden, the employer
shall have the responsibility of establishing that irreparable
injury will occur to the employer if the duty of abatement is not
suspended during the pendency of an appeal.
(2) In all cases where the employer files a motion as described in
paragraph (1), the appeals board shall expedite the consideration
and decision of the employer's appeal with respect to the alleged
violation, and give that appeal priority over all other matters,
except matters of a like kind.
(3) In its decision on the appeal with respect to the alleged
violation, the appeals board may modify the citation's direction that
the period for the abatement of the alleged violation not be
suspended.
(c) Nothing in this section shall be construed to limit the
authority of the division to proceed under Section 6325, but the
division may not proceed simultaneously under this section and under
Section 6325 as to any individual alleged violation contained within
any individual citation.
SEC. 7. 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, 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 the place of employment, machine, device, apparatus,
or equipment is situated, for an injunction restraining the use or
operation thereof until the condition is corrected.
SEC. 8. Section 6324 of the Labor Code is amended to read:
6324. An application to the superior court for an injunction
shall be accompanied by an affidavit showing that a place of
employment, machine, device, apparatus, 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
the use or operation 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. The affidavit
shall be accompanied by a copy of the order or standard applicable
thereto. 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 as a prerequisite to the granting of any
restraining order.
SEC. 9. Section 6325 of the Labor Code is amended to read:
6325. 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 posted thereon. 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 the area of imminent hazard or condition.
The notice only may be removed by an authorized representative of the
division 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 does not prevent
the entry or use with the division's knowledge and permission for the
sole purpose of eliminating the dangerous conditions.
SEC. 10. Section 6400 of the Labor Code is amended to read:
6400. (a) Every employer shall furnish employment and a place of
employment that is safe and healthful for the employees therein.
(b) On multiemployer worksites, both construction and
nonconstruction, citations may be issued only to the following
categories of employers when the division has evidence that an
employee was exposed to a hazard in violation of any requirement
enforceable by the division:
(1) The employer whose employees were exposed to the hazard (the
exposing employer).
(2) The employer who actually created the hazard (the creating
employer).
(3) The employer who was responsible, by contract or through
actual practice, for safety and health conditions on the worksite,
which is the employer who had the authority for ensuring that the
hazardous condition is corrected (the controlling employer).
(4) The employer who had the responsibility for actually
correcting the hazard (the correcting employer).
The employers listed in paragraphs (1) (2)
to (4), inclusive, of this subdivision may be cited regardless
of whether their own employees were exposed to the hazard.
(c) It is the intent of the Legislature, in adding subdivision (b)
to this section, to codify existing regulations with respect to the
responsibility of employers at multiemployer worksites. Subdivision
(b) of this section is declaratory of existing law and shall not be
construed or interpreted as creating a new law or as modifying or
changing an existing law.
SEC. 11. 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
having direction, management, control, or custody of any employment,
place of employment, or of any other employee, who does any of the
following 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 commit
any of the acts in subdivisions (a), (b), or (c). Any violation of
subdivision (a) is punishable by imprisonment in the county jail for
a period not to exceed six months, or by a fine not to exceed five
thousand dollars ($5,000), or by both that imprisonment and fine.
Any violation of the provisions of subdivision (b), (c), or (d) of
this section is punishable by imprisonment in a county jail for a
term not exceeding one year, or by a fine not exceeding fifteen
thousand dollars ($15,000), or by both that imprisonment and fine.
If the defendant is a corporation or a limited liability company, the
fine may not exceed one hundred fifty thousand dollars ($150,000).
(e) In determining the amount of fine to impose under this
section, the court shall consider all relevant circumstances,
including, but not limited to, the nature, circumstance, extent, and
gravity of the violation, any prior history of violations by the
defendant, the ability of the defendant to pay, and any other matters
the court determines the interests of justice require.
SEC. 12. Section 6425 of the Labor Code is amended to read:
6425. (a) Any employer and any employee 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
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, 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 imprisonment and fine; or by imprisonment
in the state prison for 16 months, or two or three years, or by a
fine of not more than two hundred fifty
thousand dollars ($250,000), or by both that imprisonment
and fine; and in either case, if the defendant is a corporation or a
limited liability company, the fine may not exceed two million
dollars ($2,000,000).
(b) If the conviction is for a violation committed within seven
years after a conviction under Section 6423 or subdivision (c) of
Section 6430, punishment shall be by imprisonment in state prison for
a term of 16 months, two, or three years, or by a fine not exceeding
two hundred fifty thousand dollars ($250,000), or by both that fine
and imprisonment, but if the defendant is a corporation or limited
liability company, the fine may not be less than five hundred
thousand dollars ($500,000) or more than three million dollars
($3,000,000).
(c) If the conviction is for a violation committed within seven
years after a first conviction of the defendent for any crime
involving a violation of subdivision (a), punishment shall be by
imprisonment in the state prison for two, three, or four years, or by
a fine not exceeding two hundred fifty thousand dollars ($250,000),
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 four
million dollars ($4,000,000).
(d) In determining the amount of fine to be imposed under this
section, the court shall consider all relevant circumstances,
including, but not limited to, the nature, circumstance, extent, and
gravity of the violation, any prior history of violations by the
defendant, the ability of the defendant to pay, and any other matters
the court determines the interests of justice require.
(e) As used in this section, "willfully" has the same definition
as it has in Section 7 of the Penal Code. This subdivision is
intended to be a codification of existing law.
(f) This section does not prohibit a prosecution under Section 192
of the Penal Code.
SEC. 13. Section 6427 of the Labor Code is amended to read:
6427. Any employer who violates any occupational safety or health
standard, order, or special order, or any provision of this division
relating to the health or safety of employees 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. 14.
SEC. 13. Section 6428 of the Labor Code is amended to read:
6428. Any employer who violates any occupational safety or health
standard, order, or special order, or any provision of this
division relating to the health or safety of employees 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 twenty-five thousand dollars ($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. 15.
SEC. 14. Section 6429 of the Labor Code is amended to read:
6429. Any employer who willfully or repeatedly violates any
occupational safety or health standard, order, or special
order, or any provision of this division relating to the health and
safety of employees or of Section 25910 or special
order, or 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 employer who repeatedly violates any occupational safety
or health standard, order, or special order, or any provision of this
division relating to the health and safety of employees 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 substantially similar violation by any employer
occuring 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 relating to the health and safety
of employees or of Section 25910 of the Health and Safety Code, shall
be used to establish whether a current serious violation is a repeat
violation.
(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. 16.
SEC. 15. Section 6430 of the Labor Code is amended to read:
6430. (a) Any employer who fails to correct a violation of any
occupational safety or health standard, order, or special
order, or any provision of this division relating to the health or
safety of employees or of Section order, or special
order, or 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 twenty-five thousand dollars ($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 employer 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; but if the defendant is a
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). However, a court may impose a fine for
a violation of this subdivision in an amount less than the minimum
specified in this subdivision if the court finds that it is in the
interest of justice to do so and states its findings and reasons on
the record.
SEC. 17.
SEC. 16. 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 is a substantial
probability that death or serious physical harm could result from a
violation, including, but not limited to, circumstances where there
is a substantial probability that either of the following could
result in death or great bodily injury:
(1) A serious exposure exceeding an established permissible
exposure limit.
(2) 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.
(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.
(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.
SEC. 18.
SEC. 17. Section 6434 of the Labor Code is repealed.
SEC. 19.
SEC. 18. Section 6719 is added to the Labor Code, to read:
6719. The Legislature reaffirms its concern over the prevalence
of repetitive motion injuries in the workplace and reaffirms the
Occupational Safety and Health Standards Board's continuing duty to
carry out Section 6357.
SEC. 20.
SEC. 19. 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.