BILL ANALYSIS
AB 1127
Page 1
Date of Hearing: April 14, 1999
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Darrell Steinberg, Chair
AB 1127 (Steinberg) - As Introduced: February 25, 1999
SUMMARY : Increases civil and criminal penalties for willful,
serious, and repeat violations of occupational safety and health
standards; revises enforcement procedures under the California
Occupational Safety and Health Act (OSHA); and, enacts specific
ergonomic standards for the prevention of repetitive motion
injuries. Specifically, this bill :
1)Extends from 30 days to one year the period of time to file an
administrative complaint with the Labor Commissioner
(Commissioner) for an employee who complains of unsafe working
conditions or who refuses to engage in unsafe work, and who is
subjected to retaliation for such actions.
2)Provides that any exposure over an existing "permissible
exposure limit" is a "serious exposure."
3) Defines "serious physical harm" to mean:
a) 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.
b) 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.
c) Any injury or illness that results in temporary or
permanent disability.
4)Provides that OSHA standards and orders may be admitted into
evidence in a personal injury or wrongful death action.
5)Provides that the Division of Occupational Safety and Health
(Division) may enforce, and issue citations for violations of,
statutes in Labor Code Division 5 (Safety in Employment), as
well as regulatory standards, orders, and special orders.
6)Provides that for purposes of responding to a complaint of an
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unsafe workplace by an employee or the employee's
representative, the term "employee's representative" includes
the employee's attorney, health or safety professional, union
representative, and family member. Provides that complaints
of unsafe workplaces by government agencies shall invoke the
Division's duty to inspect a workplace. Provides further that
the Division shall allocate inspection resources so as to
respond first to that situation in which time is of the
essence.
7)Repeals the provision of current regulations under which,
following a citation by the Division, an employer's duty to
abate an unsafe condition is stayed if an employer appeals the
citation. Allows the employer to petition for a stay upon
establishing good cause and provides a procedure for the
Occupational Safety and Health Appeals Board to conduct an
expedited determination on the employer's petition.
8)Provides that if the condition of any place of employment
constitutes a serious menace to the lives or safety of
specified persons, any state or local prosecutor, as well as
the Division, may apply to a court for an injunction. Revises
the procedures for the granting of such an injunction.
9)Revises the provisions under which the Division may prohibit
entry into a workplace or prohibit use of equipment which
constitutes an imminent hazard to employees or is likely to
cause death, serious injury or illness, or serious exposure to
an employee.
10)Enacts in statute the current regulation establishing
responsibility for violation of a safety standard in a
multi-employer worksite and thereby provides that the employer
who may be cited for a violation includes the employer who:
a) Employs the exposed employee;
b) Creates the hazard;
c) Is responsible for safety and health conditions by
contract or through practice; or
d) Is responsible for correcting the hazard.
11)Increases the maximum misdemeanor sentence for knowingly or
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negligently violating safety standards, the violation of which
is deemed to be a serious violation, from six months in jail
to one year, and increases the maximum fine in such cases from
$5,000 to $200,000. Provides that if the defendant is a
corporation or limited liability company, the fine in such
cases shall not be less than $100,000 nor more than
$1,000,000.
12)Provides rules of construction governing the chapter on
penalties of the Occupational Safety and Health Act. Provides
under those rules that to the extent a word or term of this
chapter is defined in section 7 of the Penal Code, the Penal
Code definition shall apply. Provides further that the
violation of a safety standard, order, or statute, as
specified constitutes evidence of negligence.
13)Provides that an employer who willfully violates any OSHA
standard, as defined, and that violation caused death to any
employee, or caused permanent or prolonged impairment of the
body of any employee is guilty of an offense punishable as a
misdemeanor or a felony.
Provides that such offenses may be punished as misdemeanors by
a sentence up to one year in jail and a fine up to $250,000;
or punished as a felony by a sentence for 16 months, or two or
three years, or by a fine of not less than $250,000 but not
exceeding $1,000,000. Provides that if the defendant is a
corporation or limited liability company, the fine shall be
not less than $500,000 and not more than $5,000,000.
Provides that if the conviction is for a violation committed
after a first conviction for any crime involving a violation
of OSHA provisions, punishment shall be by imprisonment for
two, three, or four years, by a fine no less than $500,000 and
not exceeding $5,000,000, or by both. Provides that if the
defendant is a corporation or limited liability company, the
fine shall be not less than $1,000,000 nor more than
$10,000,000.
14)Provides that the maximum civil penalty for a serious
violation of an applicable safety standard shall be raised
from $7,000 to $25,000.
15)Provides that any past violation of a standard occurring
anywhere within the state within the previous five years shall
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be used to establish whether a current violation is a repeat
violation, and shall constitute evidence of willfulness for
purposes of applying specified penalty enhancements.
Provides that any employer, as defined, who has repeatedly
violated any safety standard shall not receive any adjustments
of a penalty based on good faith of the employer or history of
previous violations.
Requires the Division to preserve and maintain records of
investigations, inspections, and citations for a period of not
less than seven years.
16)Provides that the maximum penalty for failing to abate a
hazard within the period permitted for its correction shall be
increased from $7,000 per day to $25,000 per day.
17)Provides that failure to abate a hazard following submission
of a signed statement affirming compliance with the abatement
terms shall be punishable as a misdemeanor or a felony with
maximum misdemeanor fines of $100,000, fines from $50,000 to
$250,000 for a felony conviction, and fines of $100,000 to
$1,000,000 if the defendant is a corporation or limited
liability company.
18)Provides that a "serious violation" includes conditions where
there is a substantial probability that death or serious
physical harm could result from a violation, and conditions
where the violation results in occupational injuries or
illnesses that are indicative of a condition that may result
in serious physical harm. Provides further that 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. Provides further that for purposes of these
requirements, a substantial probability of serious injury
shall exist if any single serious injury has been caused by
the violation.
19)Repeals the provision that civil penalties for a violation of
a safety standard shall not be assessed against employers that
are governmental entities.
20)Enacts statutory requirements for the prevention of
repetitive motion injuries (RMI) in the workplace.
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21) Requires the Division and the Occupational Safety and Health
Standards Board (Standards Board) to enforce these
requirements if specified conditions exist including: (1) an
RMI has occurred to one or more employees engaged in a job,
process, or operation, (2) a pattern of symptoms or physical
signs of work-related RMI among one or more employees engaged
in a job, process, or operations has been identified or
reported; or (3) one or more employees are exposed to hazards
causing or contributing to or likely to cause or contribute to
an RMI, (4) one or more employees 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.
Requires each employer subject to specified criteria to
establish and implement a program designed to prevent and
minimize RMI.
Specifies the elements of the program which employers are
required to implement including evaluation of specified
processes, timely correction of those processes, and specified
training of employees and supervisors.
Authorizes the Standards Board to adopt regulations, which are
not subject to specified rulemaking procedural requirements
under the Administrative Procedure Act.
EXISTING LAW
1)Establishes an OSHA program for the adoption and enforcement
of workplace safety and health standards. Establishes three
branches of the OSHA program:
a) A Standards Board to adopt standards.
b) A Division to enforce standards.
c) An Appeals Board to hear appeals of employers cited by
the Division for violation of the standards.
2)Establishes civil penalties for a violation of an occupational
safety or health standard, order or special order (safety
standard).
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Establishes that an employer who commits a serious violation of
a standard may be assessed a maximum civil penalty of $25,000.
Establishes that an employer who willfully or repeatedly
violates a standard may be assessed a civil penalty of not
less than $5,000 nor more than $70,000.
Provides, by regulation, that a subsequent violation may not
be considered for the purpose of establishing a repeat
violation unless the violation occurs at the same fixed
establishment as the previous violation, or in the same region
of the Division for non-fixed site employers.
3)Provides, by regulation, that following the issuance of a
citation requiring abatement, the duty of an employer to abate
an unsafe condition is stayed if the employer appeals the
citation.
4)Provides that employers who are governmental entities are not
subject to civil penalties for violating a safety standard.
5)Establishes in the Labor Code, criminal penalties applicable
to an employer who willfully violates a standard causing the
death or permanent or prolonged impairment of the body of an
employee.
Provides that the employer convicted of such acts is guilty of
a misdemeanor, punishable by up to six months in jail and/or a
fine not to exceed $70,000.
FISCAL EFFECT : Unknown
COMMENTS :
1)The enhanced criminal penalty provisions of this bill are
drawn from AB 1015 (Knox) of 1997, which was sponsored by the
Los Angeles District Attorneys office. It passed the
Legislature and was vetoed by Governor Wilson.
2)The extension of the time for a worker subjected to
retaliation for complaining about unsafe working conditions to
file an administrative complaint with the Labor Commissioner
was contained in AB 2156 (Keeley) of 1998 which was passed by
the Legislature, and vetoed by Governor Wilson. AB 2156 and
this bill do not affect the right of an employee to file suit
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for a period of one year after such retaliation.
3)Under current law, government regulatory standards are
generally admissible into evidence in negligence and wrongful
death actions. They are typically used in such cases to
establish a standard of care. In 1971, the Legislature barred
the admission into evidence of occupational health and safety
standards, and thereby created an exception to the general
rule. This bill repeals that exception.
4)Some employers have taken the position that the Division may
not issue a civil penalty against an employer who violates a
Labor Code statute, as contrasted with a regulation adopted by
the Standards Board. This bill provides clarification that
"any violation of this division" is included within the acts
enforceable by the Division and prosecutors.
5)In a multi-employer setting, the Division has been limited in
the past by Appeals Board decisions narrowly interpreting the
definition of employer to be limited to the employer of the
exposed employee. Following a complaint to the U.S.
Department of Labor that California failed to meet minimum
OSHA requirements, the Director of the Department of
Industrial Relations adopted a regulation establishing
multi-employer responsibility. Some employers have taken the
position that the regulation is unenforceable on the grounds
that Director's regulations are not binding on the Appeals
Board. This bill incorporates into statute, the
multi-employer responsibility regulations and makes them
explicitly enforceable.
6)The current civil penalty enhancements for repeat violations
are limited by a regulation requiring the past and current
violation to be at the same fixed establishment, that is,
location. Under this limitation, an employer who is cited for
a safety violation repeatedly, but at a different address, is
not subjected to repeat penalty enhancements. This bill
repeals the regulatory limitation.
7)After years of controversy, litigation, and a legislatively
established deadline, the Standards Board adopted an
ergonomics standard. That standard is subject to ongoing
litigation. A Superior court has declared parts of the
standard, including a controversial small-employer exemption,
invalid. The court's order has been stayed pending review by
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an appellate court. This bill would enact specific ergonomic
standards and would cover employers of all sizes within such
standards.
8)Supporter argue that California's occupational safety and
health program has been weakened significantly during the past
16 years through a series of regulations, policies, and
Appeals Board decisions that limit the Division's ability to
enforce safety and health standards. They further argue that
while the majority of employers voluntarily comply with safety
requirements, the existing penalties are too low to
effectively deter those employers who do not comply.
9)Opponents argue that existing laws are adequate and that this
bill inappropriately increases civil and criminal penalties
and changes key provisions of current law. They further argue
that this bill will make it difficult to hire managers and
supervisors, and will have a chilling effect on business being
willing to locate or expand their workforce in California.
They also argue that the bill will increase unemployment in
California.
REGISTERED SUPPORT / OPPOSITION :
Support
Amalgamated Transit Union Members Local 192, Oakland
Attorney General Bill Lockyer
California Applicants' Attorneys Association
California District Attorneys Association
California Professional Firefighters
California Teamsters Public Affairs Council
Consumer Attorneys of California
PRIO Corporation
WORKSAFE!
Opposition
Associated General Contractors of California
Associated General Contractors of San Diego
California Business Properties Association
California Cast Metals Association
California Chamber of Commerce
California League of Food Processors
California Manufacturers Association
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California Railroad Industry
California Restaurant Association
California Retailers Association
California Small Business Association
California Trucking Association
Coalition for Common Sense
Commercial Transfer, Inc.
Construction Preliens & Paperwork
Custom Plastics
Ed Vance Company
Food Express, Inc.
Frank C. Alegre Trucking, Inc.
Fresno County Office of Education
Gary Olson Trucking, Inc.
Mike Conrotto Trucking
Mountain Cascade Inc.
National Federation of Independent Business
Printing Industries of California
Small Manufacturers Association of California
Swanson Farms
The Gate Guy
Woodwork Institute of California
Analysis Prepared by : Ralph Lightstone / L. & E. /
(916)319-2091