BILL ANALYSIS
AB 1127
Page 1
Date of Hearing: May 11, 1999
Consultant: Ignacio Hernandez
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mike Honda, Chair
AB 1127 (Steinberg) - As Introduced: February 25, 1999
SUMMARY : Protects a worker by increasing his or her ability to
file a claim of discrimination against an employer. Improves
worker safety by increasing the penalties available when an
employer knowingly creates a hazard for employees, or willfully,
or repeatedly violates Occupational Safety and Health Act (OSHA)
standards, causing serious harm or death. Specifically, this
bill :
1)Increases from 30 days to 1 year the time that an employee has
to file a claim of improper discharge or discrimination
against his or her employer with the Labor Commission.
2)Defines "serious physical harm" as:
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.
3)Provides that OSHA standards are admissible in any personal
injury or wrongful death action.
4)Presumes that OSHA standards are reasonable and proper
requirements of safety and are, therefore, admissible in any
civil or criminal matter.
5)Places burden of establishing good cause on employer who seeks
to appeal an order to abate a hazard.
6)Increases the misdemeanor punishment for knowingly,
negligently, or repeatedly violating an order to abate a
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hazard, punishable by a county jail term not to exceed one
year or a by a fine not exceeding $200,000 (currently, the
punishment is a term in the county jail not to exceed six
months or a fine of not more than $5,000.)
7)Sets the misdemeanor fine for a corporation or limited
liability company that knowingly, negligently, or repeatedly
violates an order to abate a hazard at no less than $100,000,
but not more than $1 million.
8)Increases from a misdemeanor to an alternate
misdemeanor/felony the willful violation of an occupational
safety or health standard or order that causes serious injury
or death.
9)Sets the misdemeanor penalty for a willful violation of an
occupational safety or health standard or order that causes
serious injury or death at a term in the county jail not to
exceed one year and or a fine.
10)Increases the misdemeanor monetary penalty for the willful
violation of an occupational safety or health standard or
order that causes serious injury or death from between $70,000
to $250,000.
11)Sets the felony penalty for a willful violation of an
occupational safety and hazard standard or order that causes
serious injury or death as imprisonment in the state prison
for 16 months, or 2 or 3 years.
12)Sets the felony fine for the willful violation of an
occupational safety or health standard or order that causes
serious injury or death at an amount no less than $250,000 but
not exceeding $1 million.
13)Increases the felony fine for the willful violation of an
occupational safety or health standard or order that causes
serious injury or death by a corporation or limited liability
company at no less than $500,000 and no more than $5 million.
14)Makes the second conviction for the willful violation of an
occupational safety or health standard or order that causes
serious injury or death a felony punishable by two, three, or
four years in state prison, or a fine of no less than $500,000
but not exceeding $5 million.
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15)Sets the felony fine for a second conviction of a corporation
or limited liability company that willfully violates an
occupational safety or health standard that causes serious
injury or death at no less than $1,000,000 and nor more than
$10 million.
16)Makes it an alternative misdemeanor/felony for an employer to
submit a false statement of compliance with an abatement order
punishable by either:
a) A county jail term not exceeding one year or by a fine
not exceeding $100,000 or by both a fine and imprisonment;
b) A term in the state prison of 16 months, 2 or 3 years,
or by a fine of not less than $50,000 but not exceeding
$250,000, or by both fine and imprisonment; or,
c) If the violator is a corporation or a limited liability
company the fine shall not be less than $100,000 but not to
exceed $1 million.
EXISTING LAW :
1)Establishes that an employer who commits a serious violation
of a standard may be assessed a maximum penalty of $25,000.
2)Establishes than an employer who willfully or repeatedly
violates an OSHA standard may be assessed a penalty of not
less than $5,000 nor more than $70,000.
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.
FISCAL EFFECT : Unknown
1)Author's Statement: According to the author, "I am pleased to
be carrying this important worker health and safety
legislation on behalf of the California Labor Federation and
the Los Angeles District Attorney with the support of many
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labor organizations, the California District Attorney's
association, and Attorney General Bill Lockyer.
"This bill is about preventing injuries and protecting the
safety and health of workers in California by enforcing the
existing standards and closing loopholes that have developed
during the last 16 years.
"AB 1127 is not about California's law abiding employers. It is
about those companies which violate safety standards and
injury and endanger workers. This bill significantly expands
potential criminal penalties against an employer who willfully
violates a safety standard leading to the death or permanent
or prolonged impairment of the body of an employee.
"It seems to me that we can all agree that such an employer
should be subject to significant penalties. Under current
laws. Under current law, that is not the case.
"Most of the key provisions of this bill have been heard before
in the Legislature and passed out, but vetoed. For example,
the revised criminal provisions are largely drawn from Mr.
Knox's 1997 bill, AB 1015. And the added time to receive
administrative complaints from employees who are fired because
they complain of unsafe working conditions was contained in a
bill by Mr. Keeley last year. It too passed, but was vetoed.
"The provision concerning multiple employer worksites has drawn
major opposition. Members, please let me call your attention
to the fact that this provision is drawn from an existing
Wilson administration regulation, which was adopted to bring
California into conformity with federal requirements.
"If it is in current regulations, why is it in this bill? It is
in the bill because there are legal issues about the
enforceability of the regulations. This bill simply clarifies
that the existing regulations. This bill simply clarifies
that the existing regulations are enforceable. Some
opposition may characterize this as a radical proposal, but it
simply is not.
"This bill is the product of years of work and review by the
labor and law enforcement communities. Yet, it is not a
finished product. There will continue to be changes as it
moves along. However, this bill is a solid, moderate reform
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measure to enable the agency to do its job of protecting
workers. It will target those employers who endanger workers,
and benefit those employers who follow the rules.
"We have all heard about the tragic explosion at the Tosco oil
refinery. Last Friday, we held a hearing in Richmond to
discuss many of the issues covered in this bill. We heard
eloquent testimony from Kathy Alatorre who lost a brother in
an earlier explosion at that facility.
"?I agree with Ms. Alatorre. The lives and health of workers
should not be sacrificed to promote benefits. The issue is
not jobs v. safety. We must have both."
2)Extended Filing Period. Under current law, an employee has
only 30 days from the date of the alleged discrimination to
file a complaint with the Labor Commissioner. This is an
unusually strict temporal restriction. During this short
period, an employee is expected to compile factual
information, consult with a legal adviser, and decide whether
or not he or she is willing to file a complaint against his or
her employer. Often times, an employee is hesitant to take
action against his or her employer for fear of overt or subtle
retaliation. Consequently, a worker may need more than 30
days to secure alternate employment possibilities before
filing a complaint with the Labor Commission. By comparison,
a person has six months to file a discrimination complaint
against a peace officer with the local municipality. In
addition, the Fair Housing and Employment Act authorizes a
one-year filing period for discrimination suits.
3)Should a Felony be Available for A Willful OSHA Violation That
Causes Death or Serious Injury? Currently, it is only a
misdemeanor under the Labor Code for an employer to willfully
violate an OSHA standard or order that results in the death or
serious injury of an employee. The maximum penalty for such
conduct is a fine not greater than $70,000 and/or imprisonment
in a county jail for term for not more than six months. This
bill gives a prosecutor the discretion to file a felony
complaint in situations where it is warranted. The maximum
penalty is a fine of at least $250,000 and/or a prison term of
16 months, 2 or 3 years.
The issue is whether it is justified to make a felony available
for this offense. The first requirement for this offense to
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lie is that the employer must be made aware of an OSHA
violation, for example, by receiving a citation from a
regulatory agency of the State of California. In addition,
the employer must knowingly fail to remedy the violation.
Lastly, the violation must be the actual and proximate cause
of the death or serious injury of an employee. For example,
in a recent case, a 25-year-old employee of a large salt
company was crushed and suffocated to death as a result of a
cave-in of almost 60 tons of salt. The employee had been
ordered to enter and clean a salt silo in a procedure that
violated several safety standards. If the employer was aware
that its cleaning practices did not comport with OSHA
standards, but nonetheless mandated the employee conduct such
procedures, should the prosecutor have the discretion to file
felony charges against the company? For knowing, egregious
violations the option should be available to the prosecutor.
Under the current Labor Code, a prosecutor could not file felony
charges. However, a prosecutor may be able to use the Penal
Code to file a felony charge. If the employee dies, the most
reasonable charge available would be involuntary manslaughter.
For this crime to lie, the prosecutor must prove criminal
negligence which is "the commission of an unlawful act, not
amounting to [a] felony; or the commission of a lawful act
which might produce death, in an unlawful manner, or without
due caution and circumspection." [Penal Code Section 192(b)]
The punishment for involuntary manslaughter is at the
discretion of the court but may be as much as two, three, or
four years in prison. [Penal Code Section 193(b).]
By comparison, it is a felony for any person to knowingly, or
with reckless disregard for the risk, handle hazardous waste
in a way to cause an unreasonable risk of fire. (Health and
Safety Code Section 25189.6) In addition, it is a felony to
put a person at risk of serious injury or death as a result of
the reckless handling of hazardous material. (Health and
Safety Code Section 25189.6) Neither one of these offenses
requires that a person suffer injury or death.
4)Evidence. The Los Angeles District Attorneys' (LADA) Office,
in a letter of support of this bill, state that OSHA standards
should be admissible in lawsuits for wrongful death and
personal injury. According to LADA, "Government standards are
generally admissible in court to show the standard of care
which a defendant should have followed. Current law, however,
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(Labor Code Section 6304.5) prohibits the admission in court
of OSHA standards in personal injury and wrongful death
lawsuits. AB 1127 repeals this provision."
5)Related Legislation.
a) AB 633 (Steinberg) extends the filing period from 30
days to 1 year for a complaint of discrimination against an
employer.
b) AB 1652 (Committee on Labor and Employment), as
introduced, extends the filing period from 30 days to 1
year for a complaint of discrimination against an employer.
This provision of AB 1652 has since been amended out.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County, and Municipal Employees
(AFSCME)
California Applicants' Attorneys Association
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Labor Federation
Los Angeles County District Attorney's Office
California Professional Firefighters
California School Employees Association
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers & Scientists of California, Local 20 IFPTE, AFL-CIO
Hotel Employees, Restaurant Employees International, AFL-CIO
Office of Attorney General Bill Lockyer
Region 8 States Council of the United Food and Commercial
Workers
WORKSAFE!
Opposition
Agricultural Council of California
Associated General Contractors of California
Associated General Contractors of San Diego
California Business Properties Association
California Chamber of Commerce
California Mining Association
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California Restaurant Association
Harvest Container Company
Kaweah Construction Co.
Philip V. Vermeulen, Governmental Relations
Roofing Contractors Association of California
Simi Valley Chamber of Commerce
Valley Intermodal Systems, Inc.
W.M. Lyles Co.
Western Growers Association
Western States Petroleum Association
One Private Citizen
Analysis Prepared by : Ignacio Hernandez/ PUB. S. / (916)
319-3744