BILL ANALYSIS
AB 1127
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1127 (Steinberg)
As Amended September 3, 1999
Majority vote
ASSEMBLY: 45-32 (June 3, 1999)
SENATE: 25-13 (September 7, 1999)
Original Committee Reference: L. & E.
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).
The Senate amendments :
1)Reduce from one year to six months the period of time for an
employee to file an administrative complaint with the Labor
Commissioner (Commissioner) relating to discharge or
discrimination for the exercise of specified rights under the
Labor Code.
2)Clarify that OSHA statutes and regulations, but not citations
or orders, may be admitted into evidence, in the same manner
as other statutes and regulations. Prohibit the testimony of
OSHA employees as expert witnesses.
3)Require the Division of Occupational Safety and Health
(Division) to investigate a complaint of a serious violation
by a state or local prosecutor within 24 hours.
4)Delete provisions which would have authorized the Division to
cite an employer for a violation of any statutory provisions
of the Labor Code division relating to occupational safety and
health.
5)Delete provisions requiring, under specified circumstances, an
employer to abate a cited hazard prior to an appeal hearing on
the citation.
6)Delete provisions relating to injunctions and "orders
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prohibiting use."
7)Codify the language of the existing multi-employer worksite
regulation adopted in 1997 by the Director of the Department
of Industrial Relations (DIR).
8)Reduce the maximum fine upon conviction of a misdemeanor for a
serious violation of a safety standard creating a real and
apparent hazard to employees, as specified, from $25,000 to
$15,000 for an individual. Reduce the maximum from $250,000
to $150,000 for a corporation and delete the minimum fine.
Reduce the maximum fine upon conviction for a willful
violation causing the death or permanent or prolonged
impairment of an employee, as specified, from $2 million to
$1.5 million for a corporation and delete the minimum fine.
Reduce the maximum fine upon a second conviction of a
corporation from $3 million to $2.5 million and from $4
million to $3.5 million, as specified. Reduce the fine upon
conviction of a misdemeanor for filing a false statement of
abatement, as provided, from $300,000 to $30,000 for an
individual and from $1 million to $300,000 for a corporation.
Reduce the civil penalties prescribed for failing to correct a
hazard from a maximum penalty of $25,000 per day to $15,000
per day.
Add language to the criminal penalty provisions prescribing
the circumstances that a court shall consider in setting the
fine, including the nature, circumstance, extent and gravity
of the violation, prior history of violation, and the ability
of the defendant to pay. Delete the section requiring the use
of any term defined in Section 7 of the Penal Code. Retain
the use of the term "willful" as defined in that section as a
codification of existing law.
9)Delete the provision requiring the Division to use any past
violation by an employer occurring anywhere within the state
during the previous five years to establish a repeat violation
and as evidence of a willfulness.
10) Permit a school
district, county board of education, community college
district, State University, University of California, and
related entities, to obtain a refund of a civil penalty, with
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interest, if all conditions previously cited have been abated,
other outstanding citations have been abated, and if there has
been no serious violation for two years at same school.
11) Delete the section
containing revised definitions and other changes in
definitions.
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
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 $7,000.
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.
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.
AS PASSED BY THE ASSEMBLY , this bill:
1)Extended from 30 days to one year the period of time to file
an administrative complaint with the 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.
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2)Provided 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)Defined 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)Provided that an order to abate an unsafe condition is not
automatically stayed on appeal of a citation by an employer.
Established a procedure for an employer to seek such a stay.
5)Revised 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.
Authorized 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)Enacted in statute the current regulation establishing
responsibility for violation of a safety standard in a
multi-employer worksite.
7)Increased 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)Provided 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. Increased
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. Increased the penalties for a second conviction
for such a violation to a maximum of $4 million in the case of
a corporation.
9)Increased 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.
10)Provided that any past violation of a standard occurring
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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)Provided 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. Provided 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. Provided 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)Repealed the provision that civil penalties for a violation
of a safety standard shall not be assessed against employers
that are governmental entities.
13)Provided 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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee analysis, no net state costs.
COMMENTS :
1)Supporters, including the Los Angeles District Attorney, The
California District Attorney's Association, Attorney General
Bill Locker, and the California Labor Federation AFL-CIO,
state that under current law the willful violation of a safety
standard causing the death or permanent or prolonged injury of
an employee is a crime, but can only be prosecuted as a
misdemeanor with a $70,000 maximum penalty. They argue that
these penalties are inadequate to deal with the worst
offenders and are not comparable to laws that protect animals
and the environment.
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2)Many of the previous opponents of this measure, including the
Chamber of Commerce, which led an opposition coalition to this
bill, the California Retailers Association, the Motion Picture
Association of America, the Silicon Valley Manufacturers
Group, and the Wine Institute have withdrawn their opposition
to this bill based on the Senate amendments. The Chamber has
stated that the bill now targets "the worst of the worst".
3)This bill does not amend any existing OSHA safety or health
standards. Its provisions relate to the enforcement of
existing standards.
Analysis Prepared by : Ralph Lightstone / L. & E. / (916)
319-2091
FN: 0003384