BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1127|
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THIRD READING
Bill No: AB 1127
Author: Steinberg (D)
Amended: 9/3/99 in Senate
Vote: 21
SENATE INDUSTRIAL RELATIONS COMMITTEE : 4-2, 6/23/99
AYES: Alarcon, Figueroa, Karnette, Solis
NOES: Morrow, Mountjoy
NOT VOTING: Haynes
SENATE PUBLIC SAFETY COMMITTEE : 4-2, 8/17/99
AYES: Vasconcellos, Burton, Johnston, Polanco
NOES: McPherson, Rainey
SENATE APPROPRIATIONS COMMITTEE : 7-2, 9/3/99
AYES: Johnston, Alpert, Bowen, Burton, Escutia, Karnette,
Vasconcellos
NOES: Kelley, Leslie
NOT VOTING: Johnson, McPherson, Mountjoy, Perata
ASSEMBLY FLOOR : 45-32, 6/3/99 - See last page for vote
SUBJECT : Employee safety: violations
SOURCE : Los Angeles District Attorney's Office;
Attorney General
California Labor Federation, AFL-CIO
DIGEST : This bill provides omnibus reform of the
Cal-OSHA program relating to civil and criminal penalties
and enforcement procedures.
CONTINUED
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The purpose of this bill is to increase the civil and
criminal penalties for violations of statutes and
regulations regarding worker safety and make related
changes to Labor Code provisions regarding worker health
and safety.
ANALYSIS : In existing law, the Penal Code defines
specified terms for the purposes of the Penal Code,
including: "willfully" when applied to the intent with
which an act is done or omitted, implies simply a purpose
or willingness to commit the act or make the omission
referred to. It does not require any intent to violate
law, or to injure another, or to acquire any advantage.
(Penal Code 7) This bill adopts the above definition, and
declares that this is a restatement of existing law.
Existing law provides that every employer and every
officer, management official, or supervisor having
direction, management, control, or custody of any
employment, place of employment, or other employee who does
any of the following is guilty of a misdemeanor punishable
by up to six months in county jail and/or a fine not
exceeding $5,000:
1. Knowingly or negligently violates any standard, or
special order, or any provision of this division the
violation of which is deemed to be a serious violation.
2. Repeatedly violates any standard, order, or special
order, or provision of this division, or any part
thereof in, or authorized by, this part, which repeated
violation creates a real and apparent hazard to
employees.
3. Fails or refuses to comply, after notification and
expiration of any abatement period, which any such
standard order, special order, or provision of this
division, or any part thereof, which failure or refusal
creates a real and apparent hazard to employees.
4. Directly or indirectly or knowingly induces another to
do any of the above. (Labor Code 6423)
This bill increases the penalty for repeated violations or
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failure to comply or inducing others to do the above to up
to one year in county jail and/or a $15,000 fine.
This bill also creates a separate penalty if the violator
is a corporation or limited liability company. That
penalty shall be not more than $150,000, however the bill
specifically states that in determining the amount of fine
to impose, the court shall consider all relevant
circumstances including the nature, circumstance, extent
and gravity of the violation, any prior history of
violations and the ability of the defendant to pay.
Existing law provides that battery is any willful and
unlawful use of force or violence upon the person of
another. (Penal Code 242)
Existing law provides that when a battery is committed
against any person and serious bodily injury is inflicted
on the person it is an alternate misdemeanor/felony
"wobbler" punishable by imprisonment in the county jail up
to one year or in state prison for 2, 3, or 4 years.
(Penal Code 243(d))
Existing law provides that manslaughter is the unlawful
killing of a human being without malice. (Penal Code 192)
Existing law provides that manslaughter is involuntary when
committed in the commission of an unlawful act, not
amounting to a felony; or in the commission of a lawful act
which might produce death, in an unlawful manner, or
without due caution and circumspection. (Penal Code
192(b))
Existing law provides that involuntary manslaughter is a
felony punishable by imprisonment in state prison for 2, 3,
or 4 years. (Penal Code 193(b))
Existing law provides that any employer, and every employee
having direction, management, control, or custody of any
employment, place of employment or other employee, who
willfully violates any occupational safety or health
standard, order or special order, or Section 25910 of the
Health and Safety Code, and that violation caused death to
any employee, or caused permanent or prolonged impairment
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of the body of any person is guilty of a misdemeanor
punishable by up to 6 months in jail and/or a fine not to
exceed $70,000. If the conviction is for a violation
committed after a first conviction punishment shall be by a
$35,000-$70,000 fine and/ up to one year in jail. (Labor
Code 6425)
This bill makes the above offense a "wobbler" for a first
offense punishable by either one year in county jail and/or
a fine not exceeding $100,000, or, 16 months, 2 or 3 years
and/or a fine of not more than $250,000 for a first
offense.
This bill makes it a felony when the person has a prior
conviction for Labor Code 6423 which shall be punishable
by 16 months, 2 or 3 years and/or a fine not exceeding
$250,000.
This bill makes it a felony when the person has a second
violation of the same offense which shall be punishable by
2, 3 or 4 years and/or a fine not exceeding $250,000.
This bill also creates a separate penalty for a corporation
or a limited liability company for the above offense. This
bill provides that a first offense by a corporation is
punishable by a not less than $1,500,000; a second offense
when the prior was Labor Code 6423 is punishable by a fine
of $500,000 to $2,500,000 and a second offense when the
prior offense is for the same violation is punishable by
$1,000,000 to $3,500,000.
This bill specifically provides that the court shall
consider the gravity of the offense, any prior history of
violations, and the defendant's ability to pay when
considering the amount of the fine.
Existing law prohibits and regulates the use and removal of
asbestos. (Health and Safety Code 25910)
Existing law provides any employer who commits a serious
violation of any occupational safety or health standard,
order, special order, or Section 25910 of the Health and
Safety Code shall be assessed a civil penalty of up to
$7,000 for each violation and that the violation should not
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be reduced under specified provisions if the employer does
not have an operative injury prevention program. (Labor
Code 6428)
This bill adds a violation of "any provision of this
division related to health or safety of employees" to the
above provision and increases the penalties to up to
$25,000.
Existing law provides any employer who willfully or
repeatedly violates any occupational safety or health
standard, order, or special order or Section 25910 of the
Health and Safety Code, may be assessed a civil penalty of
$5,000-$70,000. (Labor Code 6429)
This bill keeps existing penalties; provides any repeated
violation of any of the things listed above shall not
receive any adjustment to the fine; and provides that the
Division shall preserve and maintain records of its
investigations and inspections and citations for a period
of not less than seven years.
Existing law provides that any employer who fails to
correct a violation of any occupational safety or health
standard, order, or special order, or Section 25910 of the
Health and Safety Code, within the period permitted for its
correction shall be assessed a civil penalty of not more
than $7,000 for each day a violation occurs. (Labor Code
6430(a))
Existing law provides that notwithstanding the above, any
employer who submits a signed statement affirming
compliance with the abatement terms and is found upon
inspection not to have abated the violation, any adjustment
to the civil penalty based on abatement shall be rescinded
and the additional civil penalty assessed for failure to
abate shall not be adjusted for good faith of the employer
or history of previous violations. (Labor Code 6430(b))
This bill adds a violation of "any provision of this
division related to health or safety of employees" to
6430; and provides that notwithstanding 6430(a) any
employer who submits a signed statement affirming
compliance with the abatement terms and is found not to
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have abated the violation is punishable by a misdemeanor
punishable by up to one year in jail and/ or a fine up to
$30,000 and if the defendant is a corporation or limited
liability company the fine shall not exceed $300,000.
Existing law provides that a "serious violation" shall be
deemed to exist in a place of employment if there is a
substantial probability that death or serious physical harm
could result from a serious exposure exceeding the
permissible exposure limit or a condition which exists, or
from one or more practices, means, methods, operations, or
processes which have been adopted or are in use, in the
place of employment unless the employer did not, and could
not with the exercise of reasonable diligence, know of the
presence of the violation. (Labor Code 6432(a))
This bill provides instead that a "serious violation" shall
be deemed to exist in a place of employment if there is a
substantial probability that death or serious physical harm
could result from a violation including but not limited to
circumstances where there is a substantial probability that
either of the following could result in death or great
bodily injury: an exposure exceeding an established
permissible limit; the existence of one or more practices
means, methods, operations, or processes which have been
adopted or are in use, in the place of employment.
Existing law prohibits civil penalties from being assessed
against employers that are governmental agencies for
violations of certain employee safety standards. (Labor
Code 6434)
This bill repeals that prohibition and requires civil or
administrative penalties against a school district,
community college district, California State University,
University of California, or other specified educational
entities to be deposited into the Workplace Health and
Safety Revolving Fund and refunded or used for specified
purposes.
Existing law provides that every employer shall furnish a
safe and healthful place of employment. (Labor Code 6400)
Existing regulations include in the definition of employer
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for the purposes of civil penalties a multiemployer place
of employment who with respect to any other employee either
exposes the employee to a danger; creates a hazard; is
responsible for the safety and health conditions of the
workplace, either through practice or contract; or is
responsible for correction of a hazard.
This bill codifies the above regulation word for word and
specifies that it is declaratory of existing law.
Existing law provides that "substantial probability" refers
not to the probability that an accident or exposure will
occur as a result of the violation but rather to the
probability that death or serious physical harm will result
assuming an accident or exposure occurs as a result of the
violation. (Labor Code 6432(b))
Existing law provides that any person who believes that he
or she has been discharged or discriminated against in
violation of the Labor Code may file a complaint with the
Labor Commissioner within 30 days of the violation. (Labor
Code 98.7)
This bill extends that time limitation to six months.
Existing law provides that it is the intent of the
Legislature that the provisions of this division shall be
applicable to the proceedings against employers pursuant to
the provisions of Chapter 3 and Chapter 4 of this division
for the exclusive purpose of maintaining and enforcing
employee safety. Existing law also exempts any part of the
division from consideration in, admissibility into, or
evidence in any person injury or wrongful death action
except between an employee and his own employer. (Labor
Code 6304.5)
This bill provides that the issuance or failure to issue a
citation by the Division not be admissible in personal
injury or wrongful death actions. The bill provides that
Sections 452 and 669 of the Evidence Code applies to the
act and the occupational safety and health standards and
orders promulgated under the Labor Code in the same manner
as any other statute, ordinance or regulation. The bill
specifies legislative intent that amendments to this
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section not abrogate the holding in Brock v. State of CA
(1978)
Existing law provides that if the Division of Occupational
Safety and Health learns or has reason to believe that any
place of employment is not safe or is injurious to the
welfare of any employee, it may on its own motion summarily
investigate that place with or without notice of hearings.
(Labor Code 6309)
Existing law provides that if the Division of Occupational
Safety and Health gets a complaint from an employee, the
employee's representative or an employer of an employee
directly involved in an unsafe place of employment, it
shall with or without notice of hearing investigate the
complaint within 3 days of a serious complaint and within
14 days of a non-serious complaint. (Labor Code 6309)
This bill defines employee's representative for the
purposes of the complaint initiating an investigation as
"an attorney, health or safety professional, union
representative, or representative of a government agency."
This bill also provides that inspection resources shall be
allocated to respond first to those situations in which
time is of the essence.
Under existing law the appeal of an alleged violation
suspends the running of the period of abatement.
This bill creates a new section providing that if the
Division of Occupational Safety and Health determines that
an alleged violation is serious and presents such a
substantial risk to the safety or health of employees that
the initiation of an appeal by the employer should not
suspend the running of the period for the abatement of that
violation the citation issued shall include a statement of
that determination. If a citation contains such a
statement then at the time of filing for appeal the
employer may file a motion requesting the running for the
period of abatement be suspended during the appeal. This
bill makes it clear that the burden is on the Division to
establish that an abatement shall occur.
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The bill provides that a hearing on that motion shall be
conducted within 15 days of filing the motion and sets up
factors to consider in deciding the motion. The bill also
provides that appeals for citations in these situations
shall have priority.
This bill contains language stating that the Legislature
reaffirms its concerns over the prevalence of repetitive
motion injuries.
Comments :
Need for the Bill
According to the author:
On Monday, June 8th, an employee of a
building-materials company in Southern California was
killed when he was sucked into a sand hopper, buried
and suffocated. While the investigation of this latest
workplace fatality has just begun, it appears to be
similar to a case described by the representative of
the Los Angeles District Attorney in support of this
measure.
From the district attorneys, Cal/OSHA officials, and
the Labor community, we have learned about a series of
horrifying and preventable accidents where workers have
been suffocated, crushed, or burnt to death in
California following willful safety violations.
The vast majority of California's employers follow the
law, and work hard to maintain safe and healthy
workplaces. There are a handful of employers, however,
who don't. For those employers, there is no adequate
penalty on the books. A willful safety violation
causing death or permanent injury of a worker in this
state is a misdemeanor with a maximum penalty of
$70,000. There are greater penalties under pollution
laws for discharges that threaten wildlife, than for
safety violations will kill or maim workers.
Prior legislation :
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AB 1015 (Knox) 1998 - vetoed
AB 2156 (Keeley) 1998 - vetoed
SB 1464 (Marks) 1994 - vetoed
AB 3831 (Horcher) 1994 - vetoed
SB 1935 (B. Greene) 1992 - vetoed
AB 2277 (Burton) 1992 - vetoed
AB 1545 (Friedman) Chapter 599, Statutes of 1991
AB 150 (Assembly Select Committee on Industrial Safety)
Chapter 993, Statutes of 1973
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 9/7/99)
California District Attorneys Association
Amalgamated Transit Union Members Local 192
American Federation of State, County, and Municipal
Employees
Building Construction and Trades Council
California Applicants' Attorneys Association
California Conference Board of the Amalgamated Transit
Union
California Conference of Machinists
California Independent Public Employees Legislative Council
California Optometry Association
California Professional Firefighters
California School Employees Association
California State Association of Electrical Workers
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers and Scientists of California, Local 20 IFTPE
Hotel Employees and Restaurant Employees International
Union
International Association of Bridge, Structural, Ornamental
and Reinforcing Iron Workers
International Longshoreman's and Warehouseman's Union Local
63, Marine Clerks
Johan Klehs
Pile Drivers Local 34
PRIO Corporation
Plumbers, Steamfitters and Refrigeration Fitters U.A, Local
Union 393
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Region 8 States Council of the United Food and Commercial
Workers Union
Southern California District Council International
Longshoremen's and Warehousemen's Union
United Union of Roofers, Waterproofers and Allied Workers
Western States Council of Sheet Metal Workers
WORKSAFE!
Communities for a Better Environment
San Diego County District Attorney
San Mateo County Central Labor Council
Santa Cruz County District Attorneyu
OPPOSITION : (Verified 9/7/99)
Former Registered Opposition:
California Chamber of Commerce
California Manufacturers Association
California State Association of Counties
Kern County Superintendent of Schools
Fresno County Office of Education
Accesio Products
American Electronics Association
American Energy Operations, Inc.
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.
BreitBurn Energy Company
California Association of Joint Powers Authorities
California Business Properties Association
California Beer and Beverage Distributors California Cast
Metals
Association
California Drilling Fluids
California Employment Law Council
California Farm Bureau Federation
California Healthcare Association
California Hotel and Motel Association
California Grocers Association
California Lodging Industry Association
California Mining Association
California Poultry Industry Federation
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California League of Food Processors
California Poultry Industry Federation
California Railroad Industry
California Restaurant Association
California Retailers Association
California School Boards Association
California State Association of Counties
California Small Business Association
California State Floral Association
California Trucking Association
City of Davis City Council
Dalton Trucking
Coalition for Common Sense
Clorox Company
Commercial Transfer, Inc.
Coalition for Common Sense
Commercial Transfer, Inc.
Construction Employers' Association
Construction Preliens & Paperwork
Custom Plastics
Edward S. Cortez, Mayor of Pomona
Ed Vance Company
Engineering Contractors' Association
Engineering and Utility Contractors
Fence Contractors Association
Flasher/Barricade Association
Food Express, Inc.
Frank C. Alegre Trucking, Inc.
Fresno County Office of Education
Kern County Superintendent of Schools
K.K.W. Trucking Inc.
Gary Olson Trucking, Inc.
Greater San Diego Chamber of Commerce
Helix Electric, Inc.
Latin Business Association
League of California Cities
Marin Builders Exchange
Meehleis Modular Buildings, Inc.
Mike Conrotto Trucking
Motion Picture Association of America
Mountain Cascade Inc.
National Federation of Independent Business
Pacific Linen Service
New United Motor Manufacturing, Inc.
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Printing Industries of California
Ray Stone, Inc.
Reliable Trucking, Inc.
Research Consultants and Advocates
Roofing Contractors Association of California
Ryder System, Inc.
Sacramento Builders' Exchange
Small Manufacturers Association of California
Sequoia Gas, Co.
South Bay Association Chambers of Commerce
Swanson Farms
Textile Rental Services Association of America
The Gate Guy
Tiger lines Inc.
TRW Space and Electronics
Visalia Chamber of Commerce
Warner-Lambert Co. Western Textile Services Association
Western Growers Association
Western States Petroleum Association
Wine Institute
Woodwork Institute of California
New United Motor Manufacturing, Inc.
Agricultural Council of California
OPPOSITION WITHDRAWN:
Allied Waste, Inc.
American Electronics Association
ARCO Products Company
Browning Ferris Industries
California Beer & Beverage Distributors
California Chamber of Commerce
California Industrial Hygiene Council
California Retailers Association
California School Boards Association
Exxon Corporation
Hughes Electronics Corporation
Kern County Superintendent of Schools
Motion Picture Association of America
Norcal Waste Systems
Raytheon Companies
Silicon Valley Manufacturing Group
United Parcel Service
Waste Management
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Western States Petroleum Association
Wine Institute
ASSEMBLY FLOOR :
AYES: Alquist, Aroner, Bock, Calderon, Cardenas, Cardoza,
Cedillo, Corbett, Correa, Davis, Ducheny, Dutra,
Firebaugh, Gallegos, Havice, Hertzberg, Honda, Jackson,
Keeley, Knox, Kuehl, Lempert, Longville, Lowenthal,
Machado, Migden, Nakano, Papan, Reyes, Romero, Scott,
Shelley, Soto, Steinberg, Strom-Martin, Thomson,
Torlakson, Vincent, Washington, Wayne, Wesson, Wiggins,
Wildman, Wright, Villaraigosa
NOES: Aanestad, Ackerman, Ashburn, Baldwin, Bates, Battin,
Baugh, Brewer, Briggs, Campbell, Cox, Cunneen, Dickerson,
Florez, Floyd, Frusetta, Granlund, House, Kaloogian,
Leach, Leonard, Maddox, Maldonado, Margett, McClintock,
Olberg, Oller, Rod Pacheco, Runner, Strickland, Thompson,
Zettel
NOT VOTING: Mazzoni, Robert Pacheco, Pescetti
NC:jk 9/7/99 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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