Kevin Bland (right), representing the District Council of Iron Workers/California Iron Worker Employer Council and Western Steel Council, and CalChamber Policy Advocate Marti Fisher urge the Senate Labor and Industrial Relations Committee to reject SB 829, which undermines employer rights in Cal/OSHA citation appeals. Photo by Megan Wood

(May 3, 2011) A California Chamber of Commerce-opposed bill that undermines employer rights in Cal/OSHA citation appeals passed the Senate Labor and Industrial Relations Committee last week.

SB 829 (DeSaulnier; D-Concord) establishes new requirements in Cal/OSHA citation appeals that would increase costs to the Cal/OSHA Appeals Board (board) and to employers. The bill makes sweeping changes to the procedures of the Board disadvantaging employers that appeal citations.

All employers have the right to appeal a Cal/OSHA citation and proposed penalty for any number of reasons. The appeals process was designed to allow an employer to be able to represent itself in an appeal, or to be represented by an attorney. In creating overly complex requirements, the provisions of the bill disincentivize employers from appealing citations, and easily penalize employers when they do appeal.

Employers need certainty; this bill creates a system in which employers never know when the process is final, or what they can expect. By allowing anyone to participate as a party and hold employers potentially liable for excessive fees and costs, certainty and fairness for employers are severely compromised. CalChamber believes the provisions of SB 829 create an unfair system designed to penalize employers and discourage them from exercising their rights to file an appeal.

There are many provisions in the bill that CalChamber opposes. Following are some of the provisions CalChamber finds objectionable:

• Requires the Appeals board to liberally construe safety orders in favor of employees.
  CalChamber believes the outcome of an appeal proceeding should be based on the substantial evidence with no construction — liberal or otherwise — being required by the board. Furthermore, this provision is vague in its instruction and could result in unfair penalty assessment and further litigation.

• Allows anyone who is interested to seek judicial review.
  A “party” to an appeal currently has the right to seek judicial review of a decision of the board. Expanding the scope of who is a party to the appeal and allowing this expanded group to seek judicial review of board decisions will create significant costs for employers and Cal/OSHA (division). Employers and the board would be faced with growing litigation costs and uncertainty due to this expansion.

• Removes the Board’s independence from the division.
  The appeals board is an independent board, following its own regulations and statutes enacted by the Legislature. The bill removes the separation of powers and empowers the division to create regulations to govern the board, which could create a conflict of interest with the division creating rules to advantage their defense in appeals.

• Awards attorney fees, consultants fees, witness fees from the employer to the division if the division prevails.
  This provision would further increase costs for the parties by imposing an additional notice requirement and an additional hearing to ascertain “bad faith” or that the employer “had no factual basis for filing the appeal.” The criteria to establish bad faith would be subject to litigation.

• Increasing division complaint investigations while limiting division authority to prioritize resources to employee exposure to hazards.
  This provision expands the universe of health and safety complaints against employers without a legitimate prioritization of the allocation of resources. This could also be seen as an incentive to increase the filing of complaints without merit in order to harass an employer.

• Requires employers to abate safety hazards for which they have been cited before the appeal is resolved.
  This provision denies due process for employers when they are appealing the very existence of the hazard, and furthermore sets up a double appeal process almost certainly creating backlog and increased costs for the board and for employers. This provision can only increase costs for the board, the division and the employer while complicating the appeals process.

• Imposes an unreasonable filing fee of $250 for an employer to request an abatement hearing.
  Employers should not be discouraged from filing for an appeal hearing to exercise their rights. This fee could be a barrier for some employers to exercise their rights to an appeal.

• Unjustified and unreasonable expansion of who can participate in an appeal as a party.
  This provision is an over-reach and over-expansion into the rights of an employer to conduct business. This provision could disadvantage the employer, create an abuse of recourses and would allow employees to hold employers hostage and force hearings for motives other than job safety.

• Permits a party — anyone who is interested — to file for an appeal of proposed citation components, even when the employer did not appeal.
  This provision usurps the authority of the board and the division, and allows a party to interfere with the justice served by the division. This provision adds to employer uncertainty and increases costs to the division, the board and employers.

• Requires parties to agree in settlement hearings.
  This provision usurps the division’s authority to represent the interest of workplace safety and its prosecutorial authority, by allowing anyone to unwind a completed case and contest an agreement for settlement between the division and the employer.

• Allows the division to amend citations, creating a ‘gotcha’ in appeals.
  The division has six months within which to issue a citation after inspection, which should be more than adequate time to fully research and cite correctly. The amending of the citation would unfairly disadvantage the employer later in the appeal process, because it allows amending at any time before the appeal is submitted for decision and even after a hearing.

• Requires the board to follow short timelines for decisions after reconsideration (DAR).
  DARs are thoughtfully deliberated and prioritized. With the limited resources of the board, it is frivolous to direct this expedited decision-making and limit the board’s ability to prioritize its work.

• Increases uncertainty, litigation and costs to employers by allowing anyone to file a writ and overturn a final order of the board.
  Employers have rights to due process under the law. This provision undermines those rights by expanding the authority of those who wish to be involved, and further contributing to costs and uncertainly.

SB 829 passed Senate Labor and Industrial Relations on April 27, by a vote of 5-0.

Ayes: DeSaulnier (D-Concord), Leno (D-San Francisco), Lieu (D-Torrance), Padilla (D-Pacoima), Yee (D-San Francisco).

No Vote Recorded: Runner (R-Antelope Valley), Wyland (R-Escondido).  

Staff Contact: Marti Fisher