BILL ANALYSIS
Senate Committee on Industrial
Relations 1999-2000 Regular Session Hilda L. Solis,
Chair
Fiscal: Yes
Urgency: No
Bill No: AB 1127
Author: Steinberg
Version: As proposed to be Amended
Subject:
Occupational Safety and Health: standards and penalties
Support:
California Labor Federation, AFL-CIO (co-sponsor)
Los Angeles District Attorney's Office (co-sponsor)
California District Attorneys Association
Attorney General Bill Lockyer
Amalgamated Transit Union Members Local 192
American Federation of State, County, and Municipal
Employees
California Applicants' Attorneys Association
California Conference Board of the Amalgamated Transit
Union
California Conference of Machinists
California Professional Firefighters
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers and Scientists of California, Local 20 IFTPE
Hotel Employees and Restaurant Employees International
Union
PRIO Corporation
Region 8 States Council of the United Food and Commercial
Workers Union
WORKSAFE!
Opposition:
California Chamber of Commerce
California Manufacturers Association
City of Los Angeles
City of Vernon
California State Association of Counties
Kern County Superintendent of Schools
Fresno County Office of Education
Accesio Products
American Electronics Association
American Energy Operations, Inc.
American Fence Contractors Association, California Chapter
Associated General Contractors of California
Associated General Contractors of San Diego
Associated Builders and Contractors
Association of California School Administrators
Brea Canon Oil Co., Inc.
California Association of Health Facilities
California Beer and Beverage Distributors
California Business Properties Association
California Cast Metals Association
California Fence Contractors' Association
California Healthcare Association
California Independent Petroleum Association
California League of Food Processors
California Poultry Industry Federation
California Railroad Industry
California Restaurant Association
California Retailers Association
California School Boards Association
California School Bus Contractors Association
California Self-Insurers Association
California Small Business Association
California Trucking Association
Californians for Compensation Reform
Coalition for Common Sense
Commercial Transfer, Inc.
Construction Employers' Association
Construction Preliens & Paperwork
Custom Plastics
Eastern Municipal Water District
Ed Vance Company
Engineering Contractors' Association
Food Express, Inc.
Frank C. Alegre Trucking, Inc.
Gary Olson Trucking, Inc.
Hearing Date: June 23, 1999 AB
1127
Consultant: Patrick Henning Page
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Senate Committee on Industrial Relations
Greater Bakersfield Chamber of Commerce
Hoyt-McKittrick Oil Company
Independent Oil Producers Agency
Jay Dee Transport
Latin Business Association
Marin Builders' Exchange
Mid Coast Transportation, Inc
Meehleis Modular Buildings, Inc
Mike Conrotto Trucking
Motion Picture Association
Mountain Cascade Inc.
National Federation of Independent Business
Pool California Energy Services, Inc.
Printing Industries of California
Sacramento Builders' Exchange
Silicon Valley Manufacturing Group
Small Manufacturers Association of California
Stream Energy, Inc.
Swanson Farms
The Gate Guy
The Industrial Company
Western States Petroleum Association
Wine Institute
Woodwork Institute of California
Purpose:
To provide omnibus reform of the Cal-OSHA program relating
to civil and criminal penalties and enforcement procedures.
Analysis:
Existing law provides a framework for a safe and healthy
workplace through the California Occupational Safety and
Health Act (Cal-OSHA) for the adoption and enforcement of
standards. Among other things, there are 3 key branches of
the Cal-OSHA program in the Department of Industrial
Relations relating to standards:
-the Cal-OSHA Standards Board adopts standards;
-the Division of Occupational Safety and Health (DOSH)
enforces standards; and,
Hearing Date: June 23, 1999 AB
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-the Cal-OSHA Appeals Board hears appeals of employers
cited by DOSH.
Also, under the following categories:
Penalties
Civil and criminal penalties are assessed for violation of
Cal-OSHA standards or orders. Most penalty assessments can
be adjusted to reflect the seriousness of the violation and
the safety record of the employer.
-for a serious violation of a standard, a maximum civil
penalty of $7,000;
-misdemeanor penalties (i.e., for knowledge and negligence)
for a serious violation, up to 6 months in jail, and/or a
maximum of $5,000;
-for a willful or repeat violation, causing death or
serious injury, a civil penalty of not less than $5,000 nor
more than $70,000;
-for a willful violation, causing death or permanent or
prolonged impairment, a criminal misdemeanor penalty, up to
six months in jail and/or a maximum of $70,000; for
subsequent violations, not less than $35,000 and/or up to 1
year in jail.
-for failure to abate a serious hazard, not more than
$7,000 each day until abatement achieved;
-public employers are not subject to civil penalties for
violating a safety standard.
Subsequent Violations: Civil Penalty Enhancements
-by Regulation, a subsequent violation may not be
considered a repeat violation unless it occurred at the
same fixed establishment as the previous violation, or in
the same DOSH region for non-fixed site employers.
Abatement of Hazard
Hearing Date: June 23, 1999 AB
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-by Regulation, an employer's duty after the issuance of a
citation to abate an unsafe condition is stayed if the
employer appeals the citation.
Admissible Evidence
-OSHA standards and orders may be used as evidence in
criminal prosecution, but not as admissible evidence in
negligence and wrongful death actions.
Multi-Employer Responsibility
-by Regulation, citations may be issued, not only against
the employer which exposed an employee to a hazard, but
also other responsible employers at a multiple employer
worksite (e.g. construction). Employers responsible for
creating, controlling (by contract or practice), or
correcting the hazard may be cited regardless of whether
their own employees were exposed.
Anti-Retaliation
-an employee complaint filed with the Labor Commissioner
claiming retaliation for reporting unsafe conditions or for
refusal to work under such conditions must be filed within
30 days of the occurrence.
This Bill increases civil and criminal penalties for
willful, serious, and repeat violations of Cal-OSHA
standards and orders and revises civil penalty enforcement
procedures. Under the following categories, it makes the
following changes:
Penalties
-for a serious violation, increases from $7,000 to a
maximum of $25,000;
-misdemeanor penalties for a serious violation, from a
maximum of $5,000 to a maximum of $25,000 for an individual
and adds $250,000 for a corporation.
-for a willful or repeat violation, the maximum of $70,000
is not changed, but for subsequent violations there shall
be no adjustment in the penalty. Past violations occurring
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Senate Committee on Industrial Relations
anywhere in state within the previous five years shall be
used to establish whether a current violation is a repeat
violation.
-for willful violation criminal penalties, from $70,000 to
a maximum of $100,000 and a jail term up to 1 year for an
individual, or, upon discretion of the court, 16 months or
2 or 3 years in jail and a maximum fine of $250,000. If a
corporation, not less than $250,000, or more than $2
million. For a repeat conviction, up to 4 years in jail
for an individual and not less than $1 million or more than
$4 million for a corporation.
-for failure to abate a hazard, from $7,000 per day to a
maximum of $25,000. If, after signing a statement
attesting to compliance, and upon re-inspection, abatement
has not been achieved, there will be no adjustment in the
maximum. Also, the individual is subject to a new maximum
penalty of $100,000 and a jail term up to 1 year; for a
corporation, not less than $100,000 or more than $1
million.
-repeals the provision that civil penalties shall not be
assessed against public employers.
Subsequent Violations: Civil Penalty Enhancements
-repeals the Regulation that limits civil penalty
enhancements for repeat violations at the same fixed
location of the worksite.
Abatement of Hazard
-provides that an order to abate an unsafe condition is not
automatically stayed on appeal if DOSH determines
substantial risk exists. Establishes an expedited appeals
hearing within 15 days.
Admissible Evidence
-repeals the prohibition of admitting OSHA standards and
orders as evidence in negligence and wrongful death actions
and permits the evidence in all civil matters.
Hearing Date: June 23, 1999 AB
1127
Consultant: Patrick Henning Page
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Senate Committee on Industrial Relations
Multi-Employer Responsibility
-enacts in statute the current Regulation establishing
responsibility for violation of a safety standard in a
multi-employer worksite.
Anti-Retaliation
-extends from 30 days to 1 year the time period within
which to file a complaint alleging retaliation for
reporting an unsafe condition or refusal to work under such
conditions.
Other Items
-specifies that "employee's representative" for filing a
complaint of unsafe conditions, to be, one's family member,
union representative, lawyer, a health and safety
professional, or a representative of a government agency.
-mandates that the Standards Board carry out its duty to
adopt standards for ergonomics in the workplace designed to
minimize the instances of injury from repetitive motion.
Repeals current requirement to adopt the existing standard.
-clarifies that DOSH and prosecutors have the authority to
issue civil citations for violations of not only the
statute, but of promulgated regulations.
-includes operational "process" of machinery and equipment
as cause for DOSH to seek an injunction to restrain the use
of unsafe use or operation if the condition constitutes a
serious menace.
Comments:
1. Supporters argue that the Cal-OSHA program has been
weakened significantly during
the past 16 years through a series of regulations,
policies, and Appeals Board
decisions. They further state that while the majority
of employers voluntarily comply
with safety requirements, the existing penalties are
Hearing Date: June 23, 1999 AB
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too low to effectively deter those
employers who do not comply.
2. Opponents argue, among other things, that existing laws
are adequate and that this
measure inappropriately increases civil and criminal
penalties, and changes key
provisions of current law at a time when safety
violations are at an all time low. 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.
Generally, opponents state that the onerous provisions of
the measure relate to due process, expansion of those who
can file a complaint (e.g., a family member could file
without an employee's knowledge), higher penalties, and
longer time limits to file complaints. These elements make
settlement more difficult and subject law-abiding
businesses to harassment.
Some opponents argue that it would require possible
abatement of an alleged hazard before an employer has filed
an appeal. And, when found innocent through the appellate
process, an employer would have already spent significant
time and money fixing what was never a violation.
Proponents counter that a collapsed trench or a leaky gas
pipe should be repaired regardless of whom is finally
responsible for the unsafe condition; more workers could be
injured.
Public agencies argue that removing their exemption merely
creates a costly accounting system, exchanging funds from
one public agency to another.
3. Multi-Employer Responsibility . In a multi-employer
setting, DOSH has followed past
Appeals Board decisions narrowly interpreting the
definition of an employer to be
Hearing Date: June 23, 1999 AB
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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
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 regulations are not
binding on the Appeals Board. This
measure incorporates into statute, the multi-employer
responsibility regulations and
makes them explicitly enforceable.
4. Ergonomics . After years of controversy, litigation, and
a statutory deadline, the
Standards Board adopted an ergonomics standard with,
among other things, a small
business exemption. In the case of Pulaski v.
Occupational Safety and Health
Standards Board , a Superior Court declared parts of
the standard, including a
controversial small-employer exemption, invalid. The
court's order is on appeal.
This measure would reaffirm the Legislature's concern
over the prevalence of
repetitive motion injuries in the workplace and
Standards Board's continuing duty to
adopt a complete standard.
5. Prior Legislation . This measure contains the subject
matter of a series of past bills.
Under the categories below, the following passed the
Legislature and were vetoed:
-Penalties: The enhanced criminal penalty provisions are
drawn from AB 1015 (Knox) of 1997, which was sponsored by
the Los Angeles District Attorneys office. It was vetoed
by Governor Wilson.
-Filing of Anti-Retaliation Claims: The extension of the
Hearing Date: June 23, 1999 AB
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time for a worker subjected to retaliation for complaining
about unsafe working conditions was contained in AB 2156
(Keeley) of 1998, which was passed by the vetoed by
Governor Wilson
-Abatement: Governor Wilson twice 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.
-Public Employer Penalty Exemption Repeal: Governor Wilson
twice vetoed bills which would have repealed government
immunity from OSHA civil penalties. These bills were AB
3831 (Horcher)
in 1994 and SB 2277 (Burton) in 1992.
6. Double Referral . If this measure passes this
committee, it will be double referred to
the Senate Committee on Public Safety.
7. Legislative History . This measure passed the Assembly
Labor and Employment
Committee by a 6 to 2 vote, the Assembly Public Safety
Committee by a 5 to 3 vote,
and the Assembly Floor by a 45 to 32 vote.
Hearing Date: June 23, 1999 AB
1127
Consultant: Patrick Henning Page
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Senate Committee on Industrial Relations