BILL ANALYSIS
AB 1127
Page 1
ASSEMBLY THIRD READING
AB 1127 (Steinberg)
As Amended June 1, 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; provides that willful violation of such standards
leading to death or permanent or prolonged injury of an employee
may be prosecuted as a misdemeanor or a felony; and, revises
civil penalty enforcement procedures under the California
Occupational Safety and Health Act (OSHA). 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
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conditions or who refuses to engage in unsafe work, and who is
subjected to retaliation for such actions.
2)Provides that OSHA standards and orders may, in the same
manner as other statutes and regulations, be admitted into
evidence in a personal injury or wrongful death action.
3)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.
4)Provides that an order to abate an unsafe condition is not
automatically stayed on appeal of a citation by an employer.
Establishes a procedure for an employer to seek such a stay.
5)Revises the procedures for the granting of an injunction if
the condition of any place of employment constitutes a serious
menace to the lives or safety of specified persons.
Authorizes any state or local prosecutor, as well as the
Division of Labor Standards Enforcement (Division), to apply
to a court for such an injunction.
6)Enacts in statute the current regulation establishing
responsibility for violation of a safety standard in a
multi-employer worksite.
7)Increases the maximum misdemeanor penalties for serious
violations creating a real and apparent hazard to employees,
as specified, from a maximum of $5,000 to a maximum of $25,000
for an individual and $250,000 for a corporation.
8)Provides that an employer who willfully violates an OSHA
standard where such violation causes death or permanent or
prolonged impairment of the body of an employee is guilty of
an offense punishable as a misdemeanor or a felony. Increases
the sentences and fines upon a conviction for a felony from
$70,000 to $250,000 for an individual and $2 million for a
corporation. Increases the penalties for a second conviction
for such a violation to a maximum of $4 million in the case of
a corporation.
9)Increases the maximum civil penalty for a serious violation of
an applicable safety standard from $7,000 to $25,000.
Increases the penalties for failing to abate a hazard within
the period permitted for its correction.
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10)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.
11)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, as defined. 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.
12)Repeals the provision that civil penalties for a violation of
a safety standard shall not be assessed against employers that
are governmental entities.
13)Provides that it is the continuing duty of the Occupational
Safety and Health Standards Board (Standards Board) to carry
out the provisions of existing law with respect to the
adoption of standards for ergonomics in the workplace designed
to minimize the instances of injury from repetitive motion.
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; and,
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
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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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee analysis, no net state costs.
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 Commissioner was
contained in AB 2156 (Keeley) of 1998, which was passed by the
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Legislature and vetoed by Governor Wilson. This bill does not
affect the right of an employee to file suit for a period of
one year after such retaliation.
3)The Legislature twice passed and Governor Wilson vetoed bills
which would have required cited employers to seek a stay of an
abatement order under specified circumstances. The bills were
SB 1464 (Marks) in 1994 and SB 1935 (B. Greene) in 1992.
4)The Legislature twice passed and Governor Wilson vetoed bills
which would have repealed state and/or local agency immunity
from OSHA civil penalties. These bills were AB 3831 (Horcher)
in 1994 and SB 2277 (Burton) in 1992.
5)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.
6)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.
7)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.
8)The current civil penalty enhancements for repeat violations
are limited by a regulation requiring the past and current
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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.
9)After years of controversy, litigation, and a deadline
established in Labor Code Section 6357, the Standards Board
adopted an ergonomics standard. In the case of Pulaski v.
Occupational Safety and Health Standards Board , a Superior
Court has declared parts of the standard, including a
controversial small-employer exemption, invalid. The court's
order is on appeal. This bill reaffirms the Legislature's
concern over the prevalence of repetitive motion injuries in
the workplace and Standards Board's continuing duty to
implement Labor Code Section 6357.
10)Supporters 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.
11)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: 0001647