BILL ANALYSIS
AB 1127
Page 1
ASSEMBLY THIRD READING
AB 1127 (Steinberg)
As Amended May 18, 1999
Majority vote
LABOR AND EMPLOYMENT 6-2 PUBLIC SAFETY
5-3
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|Ayes:|Steinberg, Gallegos, |Ayes:|Honda, Cedillo, Keeley, |
| |Knox, Migden, Lempert, | |Romero, Washington |
| |Shelley | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Margett, Oller |Nays:|Cunneen, Battin, Oller |
| | | | |
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APPROPRIATIONS 12-7
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|Ayes:|Migden, Cedillo, Davis, | | |
| |Hertzberg, Kuehl, Romero, | | |
| |Shelley, Steinberg, | | |
| |Thomson, Wesson, Wiggins, | | |
| |Aroner | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Brewer, Ashburn, Battin, | | |
| |Pescetti, Maldonado, | | |
| |Runner, Zettel | | |
| | | | |
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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)Revises the definitions of "serious exposure" and "serious
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physical harm."
3)Provides that OSHA standards and orders may be admitted into
evidence in a personal injury or wrongful death action.
4)Defines the term "employee's representative for purposes of
responding to a complaint of an unsafe workplace by an employee or
the employee's representative.
5)Repeals the provision of current regulations under which,
following a citation by the Division, an employer's duty to abate
an unsafe condition is automatically stayed if an employer appeals
the citation. Instead, provides that the employer may petition
for such a stay.
6)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.
7)Enacts in statute the current regulation establishing
responsibility for violation of a safety standard in a
multi-employer worksite.
8)Increases the maximum misdemeanor sentence for knowingly or
negligently violating safety standards, the violation of which is
deemed to be a serious violation.
9)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. Increases the sentences and fines upon
such a conviction.
10)Provides that the maximum civil penalty for a serious violation
of an applicable safety standard shall be raised from $7,000 to
$25,000.
11)Provides that any past violation of a standard occurring anywhere
within the state within the previous five years shall 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.
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12)Increases the penalties for failing to abate a hazard within the
period permitted for its correction.
13)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.
14)Repeals the provision that civil penalties for a violation of a
safety standard shall not be assessed against employers that are
governmental entities.
15)Enacts statutory requirements for the prevention of repetitive
motion injuries (RMI) in the workplace.
16)Requires the Division and the Occupational Safety and Health
Standards Board (Standards Board) to enforce these requirements if
specified conditions exist including: a) an RMI has occurred to
one or more employees engaged in a job, process, or operation; b)
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; c) one or more employees are exposed
to hazards causing or contributing to or likely to cause or
contribute to an RMI; or, d) 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
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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).
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.
AB 1127
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FISCAL EFFECT : According to the Assembly Appropriations Committee
analysis, no net state costs.
COMMENTS : 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.
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 for a period of one year after
such retaliation.
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.
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.
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.
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
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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.
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 an appellate court. This bill
would enact specific ergonomic standards and would cover employers
of all sizes within such standards.
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.
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.
Analysis Prepared by : Ralph Lightstone / L. & E. / (916) 319-2091
FN: 0001226