CalChamber Opposes Revival of Vetoed Bill Presuming Employer Guilt in Safety Citations

The California Chamber of Commerce and a coalition of more than 50 local chambers of commerce and associations are opposing legislation that will increase costs and undermine due process for appealing workplace safety citations. A similar CalChamber-opposed bill by the same author was vetoed by the Governor last year. This year’s proposal, AB 1634 (Skinner; D-Berkeley) is scheduled to be considered by the Assembly Labor and Employment Committee on March 19.

Like the 2013 proposal, AB 1634 proposes a costly double-appeal process that presumes guilt for employers. The bill is unnecessary in light of recently adopted regulations for an expedited appeals process for these situations.

It also creates a potential conflict of interest because the Division of Occupational Safety and Health (Cal/OSHA) issues the citation and also has the authority to rule on whether to uphold or reverse its own order to abate a safety violation.

Guilty Without Hearing

AB 1634 requires employers to abate safety hazards for which they have been cited before the appeal is resolved. In other words, while the employer exercises its right to contest the existence of a violation Cal/OSHA could order the employer to fix the alleged violation before the Cal/OSHA Appeals Board has determined whether that condition even exists.

The requirements for abatement are already grounds for appealing a Cal/OSHA citation. Moreover, Cal/OSHA has authority to issue an Order Prohibiting Use where it concludes a condition, process or piece of machinery poses an imminent hazard to employee safety.

Requiring employers to specifically contest an abatement where it would otherwise be stayed creates two separate appeals where currently there is one. The creation of a new ground for appeal concerning abatement is not needed and will place an unnecessary burden on Cal/OSHA, employers, and other parties.

New Process Working

The expedited appeals process where hazard abatement has not occurred and is at issue was developed with labor and management collaborating in July 2013 based on a successful pilot project and extensive stakeholder input over several years. The new process has been successful in identifying cases where abatement is an issue and expediting those, and also in causing most of the abatement issues to be resolved with abatement occurring.

Cost

AB 1634 sets up a new administrative process / hearing process (the bill does not clarify which). In either case, a new process requires staffing, setting up processes and procedures, and regulations being developed and adopted. The Senate Appropriations Committee predicted the cost to exceed $1 million with last year’s similar bill, AB 1165 (Skinner; D-Berkeley).

Governor’s Veto

In vetoing AB 1165, the Governor cited the bill’s creation of a separate hearing process, duplicating the expedited Cal/OSHA Appeals Board process. He directed Cal/OSHA "to consult with the author to make sure the Appeals Board process is working as intended and, if necessary, to recommend any additional administrative or regulatory actions that may be needed."