HomeMy WebLinkAboutMINUTES - 03161999 - C49-C52 TO: BOARD OF SUPERVISORS Contra
FROM* PHIL BATCHELOR, COUNTY ADMINISTRATOR � � St
County
DATE: March 9, 1999
F7'-C L1N
SUBJECT: LEGISLATION. ACA 11 (BRINGS)
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOM MENDATION;
ADOPT a position in SUPPORT of Assembly Constitutional Amendment 11 by
Assemblyman Mike Briggs of Fresno which would freeze the transfer of property tax
revenue to the Educational revenue Augmentation Fund (ERAF) at the 1998-99
fiscal year level effective with the 2000-2891 fiscal year, providing the measure Is
approved by the voters,
BACKQROUND;
The Board's 1999 Legislative Program contains the following item:
"Support the efforts of CSAC and the Urban Counties Caucus to at
least cap the growth of ERAF, and preferably begin to return some of
the base to counties and cities."
Assemblyman Briggs has Introduced ACA 11 which would freeze the transfers to the
ERAF at the current fiscal year level. In addition, since it would lode this cap Into,the
State Constitution,it would not be possible for the Legislature to unilaterally increase
the transfer in the future. ACA 11 does not address reducing the transfer to the
ERAF below the 1998-99 fiscal year level, but that would still be within the
jurisdiction of the Legislature.
CONTINUED ON ATTACHMENT: YES SIGNATURE: °`
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
a
SIGNATUFIE S: r�
ACTION OF BOARD ON Aamb E �;�Lt � APPROVED AS RECOMMENDED XX OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
_XX-UNANIMOUS(ABSENT _ ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
ATTESTED March 16 . 1999 --
Contact". PH;L BATCHELOR CLERK OF T HE BOARD OF
cc: SUPERViSORSI.AND COUNTY ADMI.NESTRATOR
See gage 2 ,.
BYI w �� - -,DEPUTY
In view of the fact that ACA 11 appears to be consistent with the Board's 1999
Legislative Program, it is recommended that the Board indicate its support of ACA
11.
cc: County Administrator
Auditor-Controller
Tony Enea, Senior Deputy County Administrator
Assemblyman Mike Briggs
29th Assembly District
Room 5931 State Capitol
Sacramento, CA 95514
Les Spahnn
Heim, Noack, Kelly & Spahnn
1121 L Street, Suite 100
Sacramento, CA 95514
-2-
CALIFORNIA LEGISLATURE---1999-20W PEGULAR SESSION
Assembly Constitutional Amendment No. 11
Introduced by Assembly Member Briggs
February 24, 1999
Assembly Constitutional Amendment No. 11—A resolution
to propose to the people of the State of California an
amendment to the Constitution of the State, by adding
Section 1.5 to Article XIII A thereof, relating to local
government finance.
LEGISLATIVE COUNSEL'S DIGEST
ACA 11, as introduced., Briggs. Local government finance:
property tax revenue allocation: local agency relief.
Existing provisions of the California Constitution require
that the revenues derived from the general ad valorem
property tax be allocated to local jurisdictions in each county
in accordance with law. Existing statutory law implementing
these provisions requires each county auditor, in each fiscal
year, to allocate property tax revenues to local jurisdictions in
accordance with specified formulas and procedures, and
generally requires that each jurisdiction be allocated an
amount equal to the total of the amount of revenue allocated
to that jurisdiction in the prior fiscal year, subject to certain
modifications, and that jurisdiction's portion of the annual tax
increment, as defined. Existing statutory law reduces the
amounts of ad valorem property revenue that would
otherwise be annually allocated to the county, cities, and
special districts pursuant to these general allocation
provisions by requiring, for purposes of determining property
99
1
yy
ACA 11 --2—
tax revenue allocations in each county for the 1992-93 and
1993-94 fiscal years, that the amounts of property tax revenue
deemed allocated in the prior fiscal year to the county, cities,
and special districts be reduced in accordance with certain
formulas. Existing law annually requires that the revenues not
allocated to the county, cities, and special districts as a result
of these reductions be transferred to the Educational
Revenue Augmentation Fund in that county for allocation to
school districts, community college districts, and the county
office of education.
This measure would modify these reduction and transfer
requirements, for the 2000-01 fiscal year and each fiscal year
thereafter, by prohibiting the total amount allocated to a
county's Educational Revenue Augmentation Fund pursuant
to those requirements from exceeding the total amount
allocated to that fund for the 1998-99 fiscal year. This measure
would further require that the revenues not allocated to the
county's Educational Revenue Augmentation Fund as a result
of these reductions be instead allocated among the local
agencies in the county, as provided, and that the decrease in
allocations to a county's Educational Revenue Augmentation
Fund resulting from these limitations and reductions be first
applied to reduce allocations from that fund to school districts
and the county office of education. This measure would also
specify that the amount of moneys required by the California
Constitution to be applied by the state for the support of
school districts and community college districts be
determined in that amount that would be determined
pursuant to that provision in the absence of this measure.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
1 Resolved by the Assembly, the Senate concurring, That
2 the Legislature of the State of California at its 1999-2000
3 Regular Session, commencing on the seventh day of
4 December 1998, two-thirds of the membership of each
5 house concurring, hereby proposes to the people of the
6 State of California that the Constitution of the State be
7 amended by adding Section 1.5 to Article Xlii A thereof,
8 to read:
99
3 — ACA 11
I SEC. 1.5. (a) Notwithstanding any other provision
2 of law, in implementing the ad valorem property tax
3 revenue allocation requirements of subdivision (a) of
4 Section l in the 2000-01 fiscal year and in each fiscal year
5 thereafter, a county's Educational Revenue
6 Augmentation Fund established pursuant to Sections 97.2
7 and 97.3 of the Revenue and 'Laxation Code, or any
8 successor fund established pursuant to those sections or
9 any successor provisions, may not be allocated a total
10 amount of ad valorem property tax revenue that exceeds
11 the total amount of ad valorem property tax revenue that
12 was allocated to that fund in the 199899 fiscal year.
13 (b) In the 2000-01 fiscal year and each fiscal year
14 thereafter, both of the following requirements shall
15 apply:
16 (1) Any amount of ad valorem property tax revenue
17 that is not allocated to a county's Educational Revenue
18 Augmentation Fund as a result of the limit established in
19 subdivision (a) shall instead be allocated among the local
20 agencies in the county in accordance with each local
21 agency's proportionate share of the total amount of ad
22 valorem property tax revenues that would be required to
23 be allocated to the county's Educational Revenue
24 Augmentation Fund in the absence of this section.
25 (2) Any reduction resulting from subdivision (a) in
26 the amount of ad valorem property tax revenue that is
27 allocated to a county's Educational Revenue
28 Augmentation Fund shall be first applied to reduce
29 allocations made from that fund to school districts and the
30 county office of education, and shall be applied to reduce
31 the allocations made from that fund to community
32 college districts only after the allocations made from that
33 fund to school districts and the county office of education
34 have been reduced to zero.
35 (c) The amount of moneys that is required by Section
36 8 of Article .XVI to be applied by the State for the support
37 of school districts and community college districts shall be
38 determined in accordance with Section 8 of Article XVI
99
ACA 11 —4—
in.
4—in that amount that would be so determined in the
2 absence of this section.
0
99
a
TO: BOARD OF SUPERVISORSContra
FROM: PHIL BATCHELOR, COUNTY ADMINISTRATOR Costa
: q County
DATE: Larch 9, 1999
SUBJECT: LEGISLATION: AB 773 (LEACH)
SPECIFIC REOUEST(S)OR RECOM# ENDATION($)&BACKGROUND AND.JUSTIFICATION
RECOMMENDATION:
ADOPT a position in SUPPORT of AB 773 by Assemblywoman Lynne Leach which
would appropriate $18 million to reimburse fire departments and fire districts for the
cost of State mandated structural and wildland firefighter's safety clothing and
equipment for fiscal years beginning in 199293 and continuing through the current
fiscal year.
BACKGROUND:
The Board's 1999 Legislative Program contains the following item.
"Support the efforts of others if It is determined that legislation is
necessary to reimburse the Contra Costa County Fire Protection
District for the cast of state-mandated fire safety clothing (Seo AB 1773
from 1998)."
The State is required to reimburse local agencies for certain State mandated costs.
State law requires that firefighters obtain certain safety clothing and equipmentwhen
they are fighting certain types of fires. To date, the Legislature has been unwilling
to appropriate sufficient funds to reimburse fire agencies for these costs,
Assemblywoman Leach has introduced AB 773 which, as introduced, would
appropriate $18 million for this purpose.
CONTINUED ON ATTACHMENT: YES SIGNATURE: � r
RECOMMENDAT#CSN OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE --OTHER
SI�sNATURE S:
ACTION OF BOARD ON March 16, 1999 —APPROVED AS RECOMMENDED XX OTHER .. _
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A"TRUE
UNANIMOUS(ABSENT _) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: - — OF SUPERVISORS ON THE DATE SHOWN.
ATTESTED March 1 , 1999
Contact: PHIL BATCHELOR,CLERK OF THE BOARD OF
cc: SUPERVISORS A�JD COUNT Y ADMiNISTRATCR
See Page
BY 1 i It `€, —,DEPUTY
P
In view of the tact that AB 773 is consistent with the Board's 1999 Legislative
Program, it is recommended that the Board indicate its support of AS 773,
cc; County Administrator
Chief, Contra Costa County Fire Protection District
Auditor-Controller
Tony Enea, Senior Deputy County Administrator
Assemblywoman Lynne Leach
15th Assembly District
Boom 4015 State Capitol
Sacramento, CA 95814
Les Spahnn
Heim, Noack, Kelly & Spahnn
1121 L Street, Suite 104
Sacramento, CA 95814
-2-
Ael
CALIFORNIA LEGISLATURE-1999-2000 REGULAR SESSION
ASSEMBLY BILL No. 773
Introduced by Assembly Member Leach
(Coauthor: Assembly Member Hertzberg)
(Coauthors: Senators Rainey and Solis)
February 24, 1999
An act relating to firefighters, and making an appropriation
therefor.
LEGISLATIVE COUNSEL"S DIGEST
AB 773, as introduced, Leach. Firefighter safety clothing
and equipment: state-mandated costs: reimbursement.
Prior Budget Acts have provided for appropriations for the
reimbursement of specified costs mandated by the state.
This bill would appropriate $15,000,000 from the General
Fund to the Commission on State Mandates to reimburse
state-mandated costs for structural and wildland firefighter's
safety clothing and equipment, as specified.
Vote: 2I3. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: no.
The people of the State of California do enact as follows:
SECTION 1. The sum of eighteen million dollars
2 ($15,000,000) is hereby appropriated from the General
3 Fund to the Commission on State Mandates for
4 reimbursement, in accordance with Section 6 of Article
5 XIII B of the California. Constitution and Section 17561 of
6 the Government Code, of the costs of any new program
99
Ali 773 —2-
1 or increased level of service of an existing program,
2 mandated by statute or executive order, incurred by local
3 agencies in fiscal years 1992-93, 1993-94, 1994-95, 1995-96,
4 1996-97, 1997---98, and 1999-2000 for structural and
5 wildland firefighter's safety clothing and equipment.
O
99
3�
TO: BOARD OF SUPERVISORS rg,.�;;:•-•.�
Contra
FROM: PHIL BATCHELOR COUNTY ADMINISTRATOR
Orta
County
DATE: March 8, 1999
SUBJECT: LEGISLATION: AB 754 (ARONER)
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
ACKNOWLEDGE that the Board of Supervisors is the SPONSOR of AB 754 by
Assemblywoman Cion Aroner which would prohibit the State from retroactively
reducing reimbursement rates for the Contra Costa Health Plan (CCHP).
BACKGROUND:
Under existing law,the State Department of Health Services is required to determine
preliminary per capita rates of payment for services provided to Medi-Cal
beneficiaries enrolled in a managed care program like CCHP. The Department is
required to provide CCHP with preliminary contract rates at least 60 days prior to the
effective date of each new rate period. However, there are no penalties for the
Department's failure to do so. CCHP's current contract with the State expired
September 30, 1998, We are about to sign a new contract with new rates and these
rates will be higher than the previous rates, However, the County is at risk when we
adopt a budget and do not know for sure what level of reimbursement we are going
to receive.
The Board's 1999 Legislative Program contained the following item:
"SPONSOR legislation to prohibit retroactive rate decreases for CCHP
(it is now 13 months since our contract expired and we are at
tremendous risk if the State were to impose a retroactive decrease in
rates)."
CONTINUED ON ATTACHMENT: YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR --RECOMMENDATION OF BOARD COMMITTEE
:Z APPROVE - OTHER
SIGNATURE S
L?�_- k�
ACTION OF BOARD ON March 16, 1999, APPROVED AS RECOMMENDED M_ OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
X UNANIMOUS(ABSENT — - — _) AND CORRECT COPY OF AN ACTION WAKEN
AYES:_ NODES: -- AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT; ABSTAIN: -- OF SUPERVISORS ON THE DATE SHOWN,
ATTESTED._ March16 , 1-999
Contact: PHIL BATCHELOR,CLERK OF THE BOARD OF
cc: SUPERVISOR ND COUNTY ADMINISTRATOR
See Page 2
BY° '. rE ! DEPUTY
a ,�
OW
Assemblywoman Aroner hes agreed to author legislation for the County which would
prohibit the State from making rate changes retroactive if they are going to be
reduced and has introduced AB 754 for this purpose. Rate reductions could only be
made prospectively and the State would be prohibited from recapturing any
overpayment. In addition, if there is a rate increase, the State would have to pay
interest on the increased amount between the time the new contract became
effective and the time the new rate increase was effective.
In view of the fact that AB 754 has been introduced at the request of the Board and
is consistent with the Board's 1999 Legislative Program, it is recommended that the
Board acknowledge that it is the sponsor of AB 754.
cc: County Administrator
Wealth Services Director
Executive Director, CCHP
Assemblywoman Dion Aroner
14th Assembly District
Room 21013 State Capitol
Sacramento, CA 95814
Les Spahnn
Heim, Noack, Kelly & Spahnn
1121 L Street, Suite 100
Sacramento, CA 95814
-2-
CALIFORNIA LEGISLATURE-1999-2004 REGULAR SESSION
ASSEMBLY BILL No. 754
Introduced by Assembly Member Aroner
February 24, 1999
An act to amend Section 14087.3 of the `welfare and
Institutions Code, relating to health.
LEGISLATIVE COUNSEL'S DIGEST
AB 754, as introduced, Aroner. Medi-Cal: managed care
services.
Existing law provides for the Medi-Cal program,
administered by the State Department of Health Services,
under which qualified low-income persons are provided with
health care services. One of the methods of procuring services
under the Medi-Cal program is through contracting with
managed care plans.
Existing law requires the department to determine
preliminary per capita rates of payment for services provided
to Medi-Cal beneficiaries enrolled in a managed care program
contracting in areas specified by the Director of Health
Services for expansion of the Medi-Cal managed care program
pursuant to specified provisions.
This bill would require the department, if capitation rates
for these contractors become effective after the
commencement of the contract period, to pay to any
managed care plan that receives a rate increase the interest
on the difference between the new rate and the current rate
for the period of time between the commencement of the
contract period and the effective date of the new rate,
99
AB 754 —2—
This
2—
This hill would provide that if capitation rates for these
contractors become effective after the commencement of the
contract period, and a plan receives a new rate decrease, any
overpayment by the state for the period of time between the
commencement of the contract period and the effective date
of the new rate shall not be recaptured by the state.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
The people of the State of California do enact as follows:
1 SECTION 1. Section 14087.3 of the Welfare and
2 Institutions Code is amended to read:
3 14087.3. (a) The director may contract, on a bid or
4 nonbid basis, with any qualified individual, organization,
5 or entity to provide services to, arrange for or case
6 manage the care of Medi-Cal beneficiaries. At the
7 director's discretion, the contract may be exclusive or
8 nonexclusive, statewide or on a more limited geographic
9 basis, and include provisions to do the following:
10 (1) Perform targeted case management of selected
11 services or beneficiary populations where it is expected
12 that case management will reduce program
13 expenditures.
14 (2) Provide for delivery of services in a manner
15 consistent with managed care principles, techniques, and
16 practices directed at ensuring the most cost-effective and
17 appropriate scope, duration, and level of care.
18 (3) Provide for alternate methods of payment,
19 including, but not limited to, a prospectively negotiated
20 reimbursement rate, fee-for-service, retainer, capitation,
21 shared savings, volume discounts, lowest bid price,
22 negotiated price, rebates, or other basis.
23 (4) Secure services directed at any or all of the
24 following:
25 (A) Recruiting and organizing providers to care for
26 Medi-Cal beneficiaries.
27 (B) Designing and implementing fiscal or other
28 incentives for providers to participate in the Medi-Cal
29 program in cost-effective ways.
99
-3— AB 754
1 (C) Linking beneficiaries with cost-effective
2 providers.
3 (5) Provide for:
4 (A) Medi-Cal managed care plans contracting under
5 this chapter or Chapter 8 (commencing with Section
6 14200) to share in the efficiencies and economies realized
7 by those contracts.
8 (B) Effective coordination between contractors
9 operating under this article and Medi-Cal managed care
10 plans in the management of health care provided to
11 Medi-Cal beneficiaries.
12 (6) Permit individual physicians, groups of physicians,
13 or other providers to participate in a manner that
14 supports the organized system mode of operation.
15 (7) Encourage group practices with relationships with
16 hospitals having low unit costs.
17 (b) The director may require individual physicians,
18 groups of physicians, or other providers as a condition of
19 participation under the Medi-Cal program, to enter into
20 capitated contracts pursuant to this section in order to
21 correct or prevent irregular or abusive billing practices.
22 No physician, groups of physicians, or other providers
23 shall be reimbursed for services rendered to Medi-Cal
24 beneficiaries if the physician, group of physicians, or
25 other providers has declined to enter into a contract
26 required by the director pursuant to this section.
27 (c) The department shall seek federal waivers
28 necessary to allow for federal financial participation
29 under this section..
30 (d) (1) Notwithstanding the provisions of this
31 chapter, the department shall determine preliminary per
32 capita rates of payment for services provided to Medi-Cal
33 beneficiaries enrolled in a managed care program.
34 contracting in areas specified by the director for
35 expansion of the Medi-Cal managed care program under
36 this section, or Sections 1401.8.7, 14087.31, 14087.35,
37 14087.36, 14087.38, or 14087.96. The department shall
38 provide to each managed care plan the preliminary
39 contract rates and source documents at least 60 days prior
40 to the effective date of each new rate period.
99
AB 754 —4-
1
4-1 (2) On or before June 1, 1999, the department shall
2 enter into a memorandum of understanding with the
3 managed care plans subject to paragraph (1) regarding
4 the development of capitation rates. This memorandum
5 of understanding, which is intended to ensure that
6 capitation rates become effective in a timely manner and
7 remain stable throughout the rate year, shall establish all
8 of the following:
9 (A) A process and timetable for the managed care
10 plans to review and comment on any modifications in the
11 rate development methodology.
12 (B) A process and timetable for managed care plans to
13 provide comments on the draft rates.
14 (C) A process and timetable for the department to
15 respond to managed care plan comments on the draft
16 rates.
17 (D) A process and timetable to managed care plans to
18 finalize capitation rates.
19 (3) If capitation rates for contractors to which
20 paragraph (1) applies become effective after the
21 commencement of the contract period, the department
22 shall pay to any managed care plan that receives a rate
23 increase the interest on the difference between the new
24 rate and the current rate for the period of time between
25 the commencement of the contract period and the
26 effective date of the new rate.
27 (4) If capitation rates for contractors to which
28 paragraph (1) applies become effective after the
29 commencement of the contract period and a managed
30 care plan receives a new rate decrease, any overpayment
31 by the state for the period of time between the
32 commencement of the contract period and the effective
33 date of the new rate shall not be recaptured by the state.
O
99
TO; BOARD OF SUPERVISORS Contra
FROM: PHIL BATCHELOR, COUNTY ADMINISTRATOR ' -� ;� Costs
.'
County
DATE; March 11, 1999 f"
SUBJECT- LEGISLATION: AB 1127 (STEINBERG)
SPECIFIC REOUEST(S)OR RECOMMENDATIONS)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
1. ADOPT a position in SUPPORT of AB 1127 by Assemblyman Darrell S.
Steinberg of Sacramento which would make a number of changes to
strengthen the California Occupational Safety and Health Act of 1973 (Cal-
OSHA).
2. AMEND the Board's 1999 Legislative Program to Incorporate legislation which
would strengthen Cal-OSHA.
BACKGROUND:
On March 2, 1999, as a part of the public testimony on the Tosco Avon incident, the
Board was urged to support AB 1127 by Assemblyman Steinberg. As a part of Its
orders following public testimony,the Board directed staff to return with a copy of AB
1127 and an analysis of it.
Attached is a copy of AB 1127 as introduced on February 2b, 1999. Also attached
is an analysis of the bill by "Worksafel", a health and safety group that is co-
sponsoring the bill,
CONTINUED ON ATTACHMENT: YES SIGNATURE;
. PECOMMENDATION OF COUNTY ADMINISTRATOR _RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE S:
ACTION OF BOARD ON arc APPROVED AS RECOMMENDED .��� OTHER
March y
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
X-UNANIMOUS(ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN,
ATTESTED March 16 1992
Contact: PHIL BATCHELOR,CLERK OF THE BOARD OF
cc: SUPERVISORS AND COUNTY AO3f;N;STRATOR
BY I" j ,#DEPUTY
C
e e
Among the provisions of the bili which are particularly of interest in regard to the
Tosco incident are the following:
a Amendments to Section 6309 of the Labor Code (see page 11, beginning at
line 24 of the bill):
Under current law, Cal-OSHA is required to respond to a serious complaint
within three days if it is made by an employee or within 14 days if it is a non-
serious complaint. AB 1127 would expand the section to provide that Cal -
OSHA must also respond to a serious complaint within three days if it is filed
by a representative of the employee, including an attorney, health or safety
professional, or family member. In addition, any serious complaint received
from a representative of a government agency must be investigated within
three days.
Under current law, Cal-OSHA can decline to respond to a complaint if it finds
the complaint is intended to willfully harass an employer or if the complaint is
without any reasonable basis in fact. AB 1127 would require that both
conditions be met in order to refuse to respond to a complaint, rather than one
or the other.
0 Amendments to Sections 6823 and 6324 of the Labor Code (see page 15,
beginning at line 38 and continuing on page 16 of the bill)
Under current law, Cal-OSHA can apply to the Superior Court in the County
where the employee or employer is located when a machine or equipment
constitutes a serious menace to the lives or safety of persons seeking an
injunction restraining the use of operation of the unsafe equipment until the
condition is corrected.
AB 1127 allows Cal-OSHA to apply to the Superior Court when a "condition`
as well as a machine or equipment is involved and to expand the grounds for
the injunction to include situations where the use or operation is likely to
cause death, serious injury or illness, or serious exposure to an employee.
It is also intended to allow a local or state prosecutor to seek an injunction.
■ Amendments to Section 6825 of the Labor Code (see page 16, beginning at
line 24 of the bill):
Under current law, Cal-OSHA may shut down an unsafe operation if it is
constituting an imminent hazard to employees. AB 1127 would broaden the
authority of Cal-OSHA so they would have discretion to take steps to protect
workers if the situation is likely to cause death, serious injury or illness, or
serious exposure.
M Amendments to Sections 6460 and 6435 of the Labor Code (see page 17,
beginning at line 16 and page 28, beginning at line 28 of the bill):
Under current law, it is not clear that OSHA can issue a citation to other than
the employer of an exposed employee. AB 1127 would clarify that OSHA may
issue a citation to any employer who employs the exposed employee; creates
the hazard; is responsible, by contract or practice, for safety and health
conditions; or is responsible for correcting the hazard. As a result, it would be
-2-
clear that Cal-OSHA could cite a refinery, even if the injured individual is an
employee of a contract agency.
,amendments to Sections 6423 and 6425 of the Labor Code (see page 17,
beginning at line 27 and page 19, beginning at line 6 of the bill):
Under current law, a prosecutor has little flexibility when bring criminal cases
based on occupational safety and health violations. AB 1227 allows the
prosecutor to charge a misdemeanor under the Labor Code for serious
violations, repeat violations, or a failure to comply, or inducing others to do
that and increases the penalties from 6 months to 1 year in jail and the fine
from $5,000 to $200,000. Financial penalties are also greater for a
corporation or limited liability company: a maximum of $1 million and a
minimum of$100,000.
The bill allows the prosecutor to charge either a misdemeanor or a felony for
willful violations of safety or health provisions which cause death or
permanent or prolonged impairment of the body,where under current law only
a misdemeanor may be charged. The bill also increases the jail term when
a felony is charged to 16 months, 2 or 3 years in state prison while
maintaining the penalty of 1 year in jail for a misdemeanor. Fines for a
misdemeanor are increased from $70,000 to$250,000. Fines for a felony are
increased to $1 million with a minimum fine of $250,000. Fines are also
increased for a corporation or limited liability company. Under the bill, the
maximum fine for either a misdemeanor or a felony would be $5 million with
the minimum fine being $500,000. Fines and jail time for subsequent
violations are also increased substantially.
The bill covers a number of other subjects as are outlined in the attached
summary. However, the provisions noted above appear to be the most
relevant ones under the circumstances.
cc: County Administrator
Health Services Director
Director of Hazardous Materials Programs
,Assemblyman Darrell S. Steinberg
9th Assembly District
Room 2176 State Capitol
Sacramento, CA 95814
Les Spahnn
Heim, Noack, Kelly & Spahnn
1121 L Street, Suite 100
Sacramento, CA 95814
-3-
CALIFORNIA LEGISLATURE-1999-200 REGULAR SESSION
ASSEMBLY BILL No. 1127
Introduced by Assembly Member Steinberg
February 25, 1999
An act to amend Sections 98.7, 6302, 6304.5, 6308, 6349,
6315.5, 6317, 6323, 6324, 6325, 6400, 6423, 6425, 6427, 6428, 6429,
6430, 6432, and 6435 of, to add Sections 6424 and 6719 to, and
to repeal Sections 6357 and 6434 of, the Labor Code, relating
to employee safety.
LEGISLATIVE COUNSEUS DIGEST
AE 1127, as introduced, Steinberg. Employee safety:
violations.
Under existing law, any person who believes that he or she
has been discharged or otherwise discriminated against in
violation of the Labor Code under the jurisdiction of the
Labor Commissioner may file a complaint with the Division
of Labor Standards Enforcement within 30 days after the
occurrence of the violation.
This bill would extend from 30 days to one year that period
of time within which a complaint may be filed with the
division.
Under the California Occupational Safety and Health Act
of 1973 (hereafter Act), the term "serious exposure" is defined
for purposes of establishing a violation of standards and orders
of the Occupational Safety and Health Standards Board
(hereafter standards board) governing employee safety.
99
AB 112' —2—
This
-2—
This bill would include within the definition of a serious
exposure, for those purposes, any exposure in excess of an
established permissible exposure limit.
Existing law provides that the provisions of the Act have no
application to, may not be considered in, may not be admitted
into, evidence in any personal injury or wrongful death action
arising after January 1, 1972, except as between an employee
and his or her employer.
This bill instead would provide that neither the issuance of,
or failure to issue, a citation by the Division of Occupational
Safety and Health (hereafter division) has any application to,
nor be considered in, nor be admitted into, evidence in any
personal injury or wrongful death action, except as between
an employee and his or her employer. The bill also would
provide that the Act and the occupational safety and health
standards and orders promulgated under the Labor Code may
have application to, may be considered in, or be admissible
into, evidence in any personal injury or wrongful death action.
Existing law provides that if the division secures a complaint
from an employee, the employee's representative, or an
employer of the employee directly involved in an unsafe place
of employment, that his or her employment or place of
employment is not safe, the division is required to summarily
investigate the complaint as soon as possible, but not later than
3 working days after receipt of a complaint charging a serious
violation, and not later than 14 days after receipt of a
complaint charging a nonserious violation. Under existing law
the division is not required to respond to a complaint if it
determines that either the complaint is intended to willfully
harass an employer or is without reasonable basis.
This bill also would require the division to conduct those
investigations if a complaint is received by the employee's
representative, including, but not limited to, an attorney,
health or safety professional, union representative, family
member, or representative of a government agency. The bill
would also provide that the division is not required to respond
to a complaint if, from the facts stated in the complaint, it
determines that the complaint is intended to willfully harass
an employer and is without any reasonable basis.
99
-3— AB 1127
Existing law states that all occupational safety and health
standards and orders, rules, regulations, findings, and
decisions of the division made and entered pursuant to the Act
are admissible as evidence in any prosecution for the violation
of the Act.
This bill instead would provide that all occupational safety
and health standards and orders are admissible as evidence in
any civil or criminal matter.
Existing law authorizes the division to issue a citation to an
employer requiring the abatement of a violation of the Act.
This bill would prohibit a citation requiring abatement from
being stayed unless the employer establishes good cause for a
stay of the citation requiring abatement, as specified, and the
division makes specified findings pertaining to employee
safety and health.
Existing law provides that if the condition of any
employment or place of employment or the operation of any
machine, device, apparatus, or equipment constitutes a
serious menace to the lives or safety of persons about it, the
division may apply to the superior court of the county in which
the place of employment, machine, device, apparatus, or
equipment is located for an injunction restraining the use or
operation of the machine, device, apparatus, or equipment
until the condition is corrected. Existing law requires an
affidavit to accompany that application showing the place of
employment, machine, device, apparatus, or equipment is
being operated in violation of specified requirements and that
its use or operation constitutes a menace to the life or safety
of any person employed thereabout.
This bill would instead authorize the division to apply to the
superior court of the county in which the place of
employment or employee is located for an injunction under
those circumstances. The bill would also require the affidavit
accompanying that application to show that the use or
operation of the machine, device, apparatus, equipment, or
process violates the specified requirements and constitutes a
menace to the life or safety of any person employed
thereabout or is likely to cause death, serious injury or illness,
or serious exposure to an employee.
99
AB 1127 —4—
Existing law requires every employer to furnish
employment and a place of employment that are safe and
healthful for employees therein.
This bill would define an employer to include, but not be
limited to, a person in a multiemployer place of employment
who, with respect to any other employee at the place of
employment, employs the exposed employee, creates the
hazard, is responsible, by contract or through practice, for
safety and health conditions, or is responsible for correcting
the hazard.
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 is guilty of a misdemeanor
if it, among other things, knowingly or negligently violates any
standard, order, or special order, or any certain provisions of
law, or part thereof, or authorized by the Act, the violation of
which is deemed to be a serious violation, as defined.
This bill would instead make any corporation, limited
liability company, or person guilty of a misdemeanor under
those circumstances. The bill would also make conforming
changes to other provisions of law that impose civil and
criminal penalties on employers for violation of specified
occupational safety and health requirements. The bill would
increase from $5,000 to $200,000 the maximum fine that may
be imposed for a violation of those provisions. The bill also
would increase the length of incarceration and the monetary
penalties that may be imposed for a willful or repeated
violation of certain employee safety standards that cause
death to any employee, or cause permanent or prolonged
impairment of the body of any employee.
Existing law prohibits civil penalties from being assessed
against employers that are governmental agencies for
violations of certain employee safety standards.
This bill would repeal that prohibition.
Existing law requires the standards board, on or before
January 1, 1995, to adopt standards for ergonomics in the
workplace designed to minimize the instances of injury from
repetitive motion.
99
-5-- AB 1127
This bill would repeal that provision and instead would
require the standards board to enforce specified standards
applicable to a job, process, or operation governing the
prevention of repetitive motion injuries.
By making certain violations of employee safety standards
by employers subject to criminal penalties, the bill would
impose a state mandated local program..
The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated
by the state. Statutory provisions establish procedures for
making that reimbursement.
This bill would provide that no reimbursement is required
by this act for a specified reason.
'dote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the Mate of California do enact as follows:
1 SECTION 1. Section 98.7 of the Labor Code is
2 amended to read:
3 98.7. (a) Any person who believes that he or she has
4 been discharged or otherwise discriminated against in
5 violation of f ern---of this code under the
6 jurisdiction of the Labor Commissioner may file a
7 complaint with the division within one year after
8 the occurrence of the violation. The 30 day one-year
9 period may be extended for good cause. The complaint
10 shall be investigated by a discrimination complaint
11 investigator in accordance with this section. The Labor
12 Commissioner shall establish procedures for the
13 investigation of discrimination complaints. A summary of
14 the procedures shall be provided to each complainant
15 and respondent at the time of initial contact. The Labor
16 Commissioner shall inform complainants charging a
17 violation of Section 6310 or 6311, at the time of initial
18 contact, of his or her right to file a separate, concurrent
19 complaint with the United States Department of Labor
20 within 30 days after the occurrence of the violation.
21 (b) Each complaint of unlawful discharge or
22 discrimination shall be assigned to a discrimination
99
AB 1127 —6-
1 complaint investigator who shall prepare and submit a
2 report to the Labor Comu3issioner based on an
3 investigation of the complaint. The Labor Commissioner
4 may designate the chief deputy or assistant Labor
5 Commissioner or the chief counsel to receive and review
6 the reports. The investigation shall include, where
7 appropriate, interviews with the complainant,
8 respondent, and any witnesses who may have
9 information concerning the alleged violation, and a
10 review of any documents which may be relevant to the
11 disposition of the complaint. The identity of 'witnesses
12 shall remain confidential unless the identification of the
13 witness becomes necessary to proceed with the
14 investigation or to prosecute an action to enforce a
15 determination, The investigation report submitted to the
16 Labor Commissioner or designee shall include the
17 statements and documents obtained in the investigation,
18 and the findings of the investigator concerning whether
19 a violation occurred. The Labor Commissioner may hold
20 an investigative hearing whenever the Labor
21 Commissioner determines, after review of the
22 investigation report, that a hearing is necessary to fully
23 -establish the facts. In the hearing the investigation report
24 shall be made a part of the record and the complainant
25 and respondent shall have the opportunity to present
26 further evidence. The Labor Commissioner shall issue,
27 serve, and enforce any necessary subpoenas.
28 (c) If the Labor Commissioner determines a violation
29 has occurred, he or she shall notify the complainant and
30 respondent and direct the respondent to cease and desist
31 from the violation and take such action as is deemed
32 necessary to remedy the violation, including, where
33 appropriate, rehiring or reinstatement, reimbursement
34 of lost wages and interest thereon, payment of reasonable
35 attorney's fees associated with any hearing held by the
36 Labor Commissioner in investigating the complaint, and
37 the posting of notices to employees. If the respondent
38 does not comply with the order within 10 working days
39 following notification of the Labor Commissioner's
40 determination, the Labor Commissioner shall bring an
99
-7— AB 1127
I action promptly in an appropriate court against the
2 respondent. If the Labor Commissioner fails to bring an
3 action in court promptly, the complainant may bring an
4 action against the Labor Commissioner in any
5 appropriate court for a writ of mandate to compel the
6 Labor Commissioner to bring an action in court against
7 the respondent. If the complainant prevails in his or her
8 action for a writ, the court shall award the complainant
9 court costs and reasonable attorney's fees,
IO notwithstanding any other provision of law. Regardless of
II any delay in bringing an action in court, the Labor
12 Commissioner shall not be divested of jurisdiction. In any
1113 such action, the court may permit the claimant to
14 intervene as a party plaintiff to the action and shall have
15 jurisdiction, for cause shown, to restrain the violation and
16 to order all appropriate relief. Appropriate relief
17 includes, but is not limited to, rehiring or reinstatement
18 of the complainant, reimbursement of lost wages and
19 interest thereon, and 9tteh any other compensation or
20 equitable relief as is appropriate under the circumstances
21 of the case. The Labor Commissioner shall petition the
22 court for appropriate temporary relief or restraining
23 order unless he or she determines good cause exists for
24 not doing so.
25 (d) If the Labor Commissioner determines no
26 violation has occurred, he or she shall notify the
27 complainant and respondent and shall dismiss the
28 complaint. The Labor Commissioner may direct the
29 complainant to pay reasonable attorney's fees associated
30 with any hearing held by the Labor Commissioner if the
31 Labor Commissioner finds the complaint was frivolous,
32 unreasonable, groundless, and was brought in bad faith.
33 The complainant may, after notification of the Labor
34 Commissioner's determination to dismiss a complaint,
35 bring an action in an appropriate court, which shall have
36 jurisdiction to determine whether a violation occurred,
37 and if so, to restrain the violation and order all
38 appropriate relief to remedy the violation. Appropriate
39 relief includes, but is not limited to, rehiring or
40 reinstatement of the complainant, reimbursement of lost
99
AB 1127 —8-
1
8°--
1 wages and interest thereon, and such other compensation
2 or equitable relief as is appropriate under the
3 circumstances of the case. When dismissing a complaint,
4 the Labor Commissioner shall advise the complainant of
5 his or her right to brim an action in an appropriate court
6 if he or she disagrees with the determination of the Labor
7 Commissioner, and in the case of an alleged violation of
8 Section 6310 or 6311, to file a complaint against the state
9 program with the United States Department of Labor.
10 (e) The Labor Commissioner shall notify the
11 complainant and respondent of his or her determination
12 under subdivision (c) or (d), not later than 60 days after
13 the filing of the complaint. Determinations by the Labor
14 Commissioner under subdivision (c) or (d) may be
15 appealed by the complainant or respondent to the
16 Director of Industrial Relations within 10 days following
17 notification of the determination. The appeal shall set
18 forth specifically and in hall detail the grounds upon
19 which the appealing party considers the Labor
20 Commissioner's determination to be unjust or unlawful,
21 and every issue to be considered by the director. The
22 director may consider any issue relating to the initial
23 determination and may modify, affirm, or reverse the
24 Labor Commissioner's determination. The director's
25 determination shall be the determination of the Labor
26 Commissioner. The director shall notify the complainant
27 and respondent of his or her determination within 10 days
28 of receipt of the appeal.
29 (f) The rights and remedies provided by this section
30 do not preclude an employee from pursuing any other
31 rights and remedies under any other provisions of law.
32 SEC. 2. Section 6.302 of the Labor Code is amended to
33 read;
34 6302. As used in this division:
35 (a) "Director" means the Director of Industrial
36 Relations.
37 (b) "Department" means the Department of
38 Industrial Relations.
39 (c) "Insurer" includes the State Compensation
40 Insurance Fund and any private company, corporation,
99
-9® AB 1127
1 mutual association, and reciprocal or interinsurance
2 exchange, authorized under the laws of this state to insure
3 emplovers against liability for compensation under this
4 part and under Division 4 (commencing with Section
5 3201), and any employer to whom a certificate of consent
6 to self-insure has been issued.
7 (d) "Division" means the Division of Occupational
8 Safety and Health.
9 (e) "Standards board" means the Occupational Safety
10 and Health Standards Board, within the department.
11 (f) "Appeals board" means the Occupational Safety
12 and Health Appeals Board, within the department.
13 (g) "Aquaculture" means a form of agriculture as
14 defined in Section 17 of the Fish and Game Code.
15 (h) "Serious injury or illness" means any injury or
16 illness occurring in a place of employment or in
17 connection with any employment which requires
18 inpatient hospitalization for a period in excess of 24 hours
19 for other than medical observation or in which an
20 employee suffers a loss of any member of the body or
21 suffers any serious degree of permanent disfigurement,
22 but does not include any injury or illness or death caused
23 by the commission of a violation of the Penal Code
24 vielat , except the violation of Section 385 of the Penal
25 Cade, or an accident on a public street or highway.
26 (i) `Serious exposure" means any exposure of an
27 employee to a hazardous substance when the exposure
28 occurs as a result of an incident, accident, emergency, or
29 exposure over time and is in a degree or amount sufficient
30 to create a substantial probability that death or serious
31 physical harm in the future could result from the
32 exposure. Any exposure in excess of an established
33 permissible exposure limit is a serious exposure.
34 (j) "Serious physical harm" means any of the
35 following:
36 (1) Any injury involving a temporary, prolonged, or
37 permanent impairment of the body in which any part of
38 the body is rendered functionally useless or substantially
39 reduced in efficiency on or off the job.
99
AB 1127 — 10-
1
10-1 (2) Any illness involving a condition that may shorten
2 life or significantly reduce physical or mental efficiency
3 by inhibiting the normal function of a part of the body.
4 (3) Any injury or illness that results in temporary or
5 permanent disability.
6 SEC. 3. Section 6304.5 of the Labor Code is amended
7 to read.
8 6304.5. It is the intent of the Legislature that the
9 provisions of this division---shall -e* b and the
10 occupational safety and health standards and orders
11 promulgated under this code, are applicable to
12 proceedings against employers
bretight ptffseant to the-
13
14 and 4 ( . ' with Seetieft 6600) of Part I of this
15 divisia for the exclusive purpose of maintaining and
16 enforcing employee safety.
17 Neither this divisiett tier atty part ef this divisieft the
18 issuance of or failure to issue, a citation by the division
19 shall have any application to, nor be considered in, nor be
20 admissible into, evidence in any personal injury or
21 wrongful death action
22 this except as between an employee and his or
23 her own employer. This division and the occupational
24 safety and health standards and orders promulgated
25 under this code may have application to, be considered
26 in, or be admissible into, evidence in any personal injury
27 or wrongful death action.
28 SEC. 4. Section 6308 of the Labor Code is amended to
29 read:
30 6308. The divi cert, itt In enforcing this division,
31 occupational safety and health standards-- , orders, and
32 special orders, the division may do any of the following:
33 (a) Declare and prescribe whe+ the safety devices,
34 safeguards, or other means or methods of protection that
35 are well adapted to render the employees of every
36 employment and place of employment safe as required
37 by law or lawful order.
38 (b) Enforce Section 25910 of the Health and Safety
39 Code and standards and orders adopted by the standards
40 board pursuant to Chapter 6 (commencing with Section
99
- 11 — AB 1127
1 140) of Division 1 of the Labor Code, for the installation,
2 use, maintenance, and operation of reasonable uniform
3 safety devices, safeguards, and other means or methods
4 of protection, which are necessary to carry out all laws
5 and lawful standards or special orders relative to the
6 protection of the life and safety of employees in
7 employments and places of employment.
8 (c) Require the performance of any other act Leh
9 that is reasonably necessary for the protection of the life
10 and safety of the employees in employments and places
11 of employmentreasonably demands.
12 An employer may request a hearing on a special order
13 or action ordered pursuant to this section, at which the
14 employer, owner, or any other person may appear. The
15 appeals board shall conduct the hearing at the earliest
16 possible time.
17 All orders, rules, regulations, findings, and decisions of
18 the division made or entered under this part, except
19 special orders and action orders, may be reviewed by the
20 Supreme Court and the courts of appeal as may be
21 provided by law.
22 SEC. 5. Section 63019 of the Labor Cade is amended to
23 read:
24 6309. *Ateftevff If the division learns or has reason to
25 believe that any employment or place of employment is
26 not safe or is injurious to the welfare of any employee, it
27 may, of its own motion, or upon complaint, summarily
28 investigate the same employment or place of
29 employment, with or without notice or hearings.
30 However, when if the division secures a complaint from
31 an employee, the employee's representative, including,
32 but not limited to, an attorney, health or safety
33 professional, anion representative, family member, or
34 representative of a government agency, or an employer
35 of an employee directly involved in an unsafe place of
36 employment, that his or her employment or place of
37 employment is not safe, it shall, with or without notice or
38 hearing, summarily investigate the same employment or
39 place of employment as soon as possible, but not later
401 than three working days after receipt of a complaint
99
I
AB 1127 — 12-
1
12-
1 charging a serious violation, and not later than 14
2 calendar days after receipt of a complaint charging a
3 nonserious violation. The division shall attempt to
4 determine the period of time in the future that the
5 complainant believes the unsafe condition may continue
6 to exist, and shall allocate inspection resources so as to
7 respond first to those situations in which time is of the
8 essence. For purposes of this section, a complaint shall be
9 deemed to allege a serious violation if the division
10 determines that the complaint charges that there is a
11 substantial probability that death or serious physical harm
12 could result from a condition which exists, or from one or
13 more practices, means, methods, operations, or processes
14 which have been adopted or are in use in a place of
15 employment. All other complaints shall be deemed to
16 allege nonserious violations. The division may enter and
17 serve any necessary order relative thereto. The division
18 is not required to respond to any complaint within. this
19 period te=e if, from the facts stated in the complaint, it
20 determines that the complaint is intended to willfully
21 harass an emplover or and is without any reasonable
22 basis.
23 The division shall keep complete and accurate records
24 of any complaints, whether verbal or written, and shall
25 inform the complainant, whenever his or her identity is
26 known, of any action taken by the division in regard to the
27 subject matter of the complaint, and the reasons for the
28 action. The records of the division shall include the dates
29 on which any action was taken on the complaint, or the
30 reasons for not taking any action on the complaint. The
31 division shall, pursuant to authorized regulations,
32 conduct an informal review of any refusal by a
33 representative of the division to issue a citation with
34 respect to any alleged violation. The division shall furnish
35 the employee or the representative of employees
36 requesting the review a written statement of the reasons
37 for the division's final disposition of the case.
38 The name of any person who submits to the division a
39 complaint regarding the unsafeness of an employment or
99
- 13— AB 1127
1 place of employment shall be kept confidential by the
2 division, unless that person requests otherwise.
3 The requirements of this section shall not relieve the
4 division of its requirement to inspect and assure that all
5 places of employment are safe and healthful for
6 employees. The division shall maintain the capability to
7 receive and act upon complaints at all times.
8 SEC. 6. Section 6+315.5 of the Labor Code is amended
9 to read:
10 6315.5. All occupational safety and health standards
11 and orders, fules, regulations, fittdings,
12 — iy —mfide andentered purstt&A are
13 admissible as evidence in any preseetifieft for the
14 . civil or criminal
15 matter, and shall, in every sueh preseettfien any such
16 action, be presumed to be reasonable and lawful and to
17 fix a reasonable and properand requirement of
18 safety unless, prior to the institution of the preseeetiett
19 seeh violet action, proceedings for a hearing on a
20 special order are instituted, or a petition is filed under
21 Section 11426 of the Government Code.
22 SEC. 7. Section 6317 of the Labor Code is amended to
23 read:
24 6317. (a) If, upon inspection or investigation, the
25 division believes that an employer has violated Section
26 25910 of the Health and Safety Code--et any standard,
27 rule, order, or regulation established pursuant to Chapter
28 6 (commencing with Section 140) of Division 1 of the
29 Labor Code, or any provision of this division, including
30 any standard, rule, order, or regulation established
31 pursuant to this pts division, it shall with reasonable
32 promptness issue a citation to the employer. Each citation
33 shall be in writing and shall describe with particularity
34 the nature of the violation, including a reference to the
35 provision of the code, standard, rule, regulation, or order
36 alleged to have been violated. In addition, the citation
37 shall fix a reasonable time for the abatement of the
38 alleged violation. The period specified for abatement
39 Atall does not commence ruts until the date the
40 citation or notice is received by certified mail and the
99
3
AB 1127 — 14-
1 certified mail receipt is signed, or if not signed, the date
2 the return is made to the post office. If the division
3 officially and directly delivers the citation or notice to the
4 employer, the period specified for abatement sheR
5 eemmenee raftning commences on the date of the
6 delivery.
7 A citation requiring abatement may not be stayed by
8 the filing of an appeal, except as provided in this
9 subdivision. Upon an application accompanied by
10 declarations and exhibits, submitted under penalty of
11 perjury, an employer may petition the appeals board for
12 a stay of abatement pending appeal at the time the
13 employer files a notice of appeal. The employer shall have
14 the burden of establishing good cause for a stay of the
15 citation requiring abatement. Within five business days of
16 the date of receipt of the notice of appeal and request for
17 stay of abatement pending appeal, the division may
18 respond to the employer's declarations and exhibits, and
19 the division also may request an expedited hearing.
20 Within 10 business days, the appeals board shall consider
21 the evidence submitted by the employer and the division,
22 and shall consider oral testimony if the division requests
23 an expedited hearing, and upon all the evidence and
24 proceedings may grant a stay of abatement pending
25 appeal if it finds that (1) no employee may be exposed to
26 the unsafe or unhealthful condition or (2) that the
27 condition is not likely to cause death, serious injury or
28 illness, or serious exposure to any employee.
29 (b) A "notice" in lieu of citation may be issued with
30 respect to violations found in an inspection or
31 investigation which meet either of the following
32 requirements:
33 (1) The violations do not have a direct relationship
34 upon the health or safety of an employee.
35 (2) The violations do not have an immediate
36 relationship to the health or safety of an employee, and
37 are of a general or regulatory nature. A notice in lieu of
38 a citation may be issued only if the employer agrees to
39 correct the violations within a reasonable time, as
40 specified by the division, and agrees not to appeal the
99
-15— AB 1127
1 finding of the division that the violations exist. A notice
2 issued pursuant to this paragraph shall have the same
3 effect as a citation for purposes of establishing repeat
4 violations or a failure to abate. Every notice shall clearly
5 state the abatement period specified by the division, that
6 the notice may not be appealed, and that the notice has
7 the same effect as a citation for purposes of establishing
8 a repeated violation or a failure to abate. The employer
9 shall indicate agreement to the provisions and conditions
10 of the notice by his or her signature on the notice.
12 A notice may not be issued in lieu of a citation if the
13 violations are serious, repeated, willful, or arise from a
14 failure to abate.
15 The director shall prescribe guidelines for the issuance
16 of these notices.
17 The division may impose a civil penalty against an
18 employer as specified in Chapter 4 (commencing with
19 Section 6423) of this part. A notice in lieu of a citation may
20 not be issued if the number of first instance violations
21 found in the inspection (other than serious, willful, or
22 repeated violations) is 10 or more violations.
23 No citation or notice shall be issued by the division for
24 a given violation or violations after six months have
25 elapsed since occurrence of the violation.
26 The director shall prescribe procedures for the issuance
27 of a citation or notice.
28 The division shall prepare and maintain records
29 capable of supplying an inspector with previous citations
30 and notices issued to an employer.
31 SEC. 8. Section 6323 of the Labor Code is amended to
32 read:
33 6323. if the condition of any employment or place of
34 employment or the operation of any machine, device,
35 apparatus, or equipment, or process constitutes a serious
36 menace to the lives or safety of persons about it, the
37 division may apply to the superior court of the county in
38 which sfteh the place of employment etelt ne, de.iee,
39 apperates, or eVip e A employee is situated, for an
99
AB 1127 — 16-
1 injunction restraining the use or operation thereof until
2 sit the condition is corrected.
3 SEC, 9. Section 6324 of the Labor Code is amended to
4 read:
5 6324. 44te An application to the superior court for an
6 injunction shall be accompanied by an affidavit showing
7 that sit a place of employment, machine, device,
8 apparatus,-- equipment, or process is being operated in
9 violation of a safety order or standard, or in violation of
10 Section 25910 of the Health and Safety Code, and that
11 seeh the use or operation constitutes a menace to the life
12 or safety of any person employed thereabout &td or is
13 likely to cause death, serious injury or illness, or serious
14 exposure to an employee. The affidavit shall be
15 accompanied by a copy of the order or standard
16 applicable thereto-6. The application and affidavit are a
17 sufficient prima facie showing to warrant, in the
18 discretion of the court, the immediate granting of a
19 temporary restraining order. No bond shall be required
20 from the division or any other state or local prosecutor as
21 a prerequisite to the granting of any restraining order.
22 SEC. 10. Section 6325 of the Labor Code is amended
23 to read:
24 6325. art If, in the opinion of the division, a place
25 of employment, machine, device, apparatus, or
26 equipment, or any part thereof, is in a dangerous
27 condition, or if a machine, device, apparatus, or piece of
28 equipment is not properly guarded or is dangerously
29 placed so as to constitute an imminent hazard to
30 employees, or is likely to cause death, serious injury or
31 illness, or serious exposure to an employee, entry therein,
32 or the use thereof, as the case may be, shall be prohibited
33 by the division, and a conspicuous notice to that effect
34 shall be a#aehed thffete pasted thereon. Stieh The
35 prohibition of use shall be limited to the immediate area
36 in which the imminent hazard or condition exists, and the
37 division shall not prohibit any entry in or use of a place of
38 employment, machine, device, apparatus, or equipment,
39 or any part thereof, which is outside sit the area of
40 imminent hazard or condition. S The notice sheAl no
99
-17— AB 1127
1 only may be removed emeept by an authorized
2 representative of the division—1 if the place of
3 employment, machine, device, apparatus, or equipment
4 is made safe and the required safeguards or safety
5 appliances or devices are provided. This section shag does
6 not prevent the entry or use with the division's
7 knowledge and permission for the sole purpose of
8 eliminating the dangerous conditions.
9 SEC. 11. Section 6357 of the Labor Code is repealed.
10 635 Ga � , , 1995, the Oeeupati
11
12
13
14 SEC. 12. Section 6400 of the Labor Code is amended
15 to read:
16 6400. Every employer shall furnish employment and
17 a place of employment whie that are safe and healthful
18 for the employees. therein. "Employer" includes, but is
19 not limited to, a person in a multiemployer place of
20 employment who, with respect to any other employee at
21 the place of employment, does any of the following:
22 (a) Employs the exposed employee.
23 (b) Creates the hazard.
24 (c) Is responsible, by contract or through practice, for
25 safety and health conditions.
26 (d) Is responsible for correcting the hazard.
27 SEC. 13. Section 6423 of the Labor Code is amended
28 to read:
29 6423.
30 ,
31 offie or supervisor Any corporation,
32 limited liability company, or person having direction,
33 management, control, or custody of any employment,
34 place of employment, or of any other employee, who does
35 any of the following shpAl is guilty of a misdemeanor:
36 (a) Knowingly or negligently violates any standard,
37 order, or special order, or any provision of this division, or
38 of any part thereof in, or authorized by, this part the
39 violation of which is deemed to be a serious violation
40 pursuant to Section 6432.
99
AB 1127 — 18-
1
18-1 (b) Repeatedly violates any standard, order, or special
2 order, or provision of this division, or any part thereof in,
3 or authorized by, this part, which repeated violation
4 creates a real and apparent hazard to employees.
5 (c) Fails or refuses to comply, after notification and
6 expiration of any abatement period, with any such
7 standard, order, special order, or provision of this division,
8 or any part thereof, which failure or refusal creates a real
9 and apparent hazard to employees.
10 (d) Directly or indirectly, knowingly induces another
11 to commit any of the acts in
12 subdivisions(a), (b), or(c).
13 Any violation of the provisions of this section is
14 punishable by imprisonment in the a county jail not
15 exeeediftg si* ffieft#ts for a term not exceeding one year,
16 or by a fine not exceeding e two hundred thousand
17 dollars ($5,009) ($200,000), or by both that imprisonment
18 and fine. If the defendant is a corporation or a limited
19 liability company, the ,fine shall not be less that one
20 hundred thousand dollars ($100,000) but may not exceed
21 one million dollars ($1,000,000).
22 SFC. 14, Section 6424 is added to the Labor Code, to
23 read:
24 6424. For purposes of construing this chapter, the
25 following rules of construction apply:
26 (a) To the extent that a word or term of this chapter
27 is defined in Section. 7 of the :penal Code, the definitions
28 of Section 7 of the Penal Code govern the interpretation
29 of that word of term.
30 (b) In addition to the definition of "negligence" in
31 Section 7 of the Penal Code, any act or failure to act that
32 is inconsistent with any standard, special order, or any
33 provision of this division or of Section 25910 of the Health
34 and Safety Code, constitutes evidence of negligence.
35 (c) An "employer" includes, but is not limited to, a
36 person in a multiemployer place of employment who,
37 with respect to any other employee at the place of
38 employment, does any of the following:
39 (a) Employs the exposed.employee.
40 (b) Creates the hazard.
99
E
_19— AB 1127
1 (c) Is responsible, by contract or through practice, for
2 safety and health conditions.
3 (d) Is responsible for correcting the hazard.
4 SEC_ 15. Section 6425 of the Labor Code is amended
5 to read:
6 6425. Any emp4eyer-, (a) Every
7 corporation, limited liability company, or person having
8 direction, management, control, or custody of any
9 employment, place of employment, or of any other
10 employee, who willfully violates any occupational safety
11 or health standard, order, or special order, or any
12 provision of this division or of Section 25910 of the Health
13 and Safety Code, and that violationn caused death to any
14 employee, or caused permanent or ,prolonged
15 impairment of the body of azny employee, sheAl,��
16 i
1
i
18 ftet mere thtm sk menths, or by both,, e3teept that it
19
20 3
21 S 3
22 i
23 , or by be
24 is guilty of a public offense
25 punishable by imprisonment in a county jail for a term not
26 exceeding one year, or by a fine not exceeding two
27 hundred fifty thousand dollars ($250,000), or by both that
28 imprisonment and fine; or by imprisonment in the state
29 prison for 16 months, or two or three years, or by a fine
30 of not less than two hundred fifty thousand dollars
31 ($250,000) but not exceeding one million dollars
32 ($1,000,000), or by both that imprisonment and fine; and
33 in either case, if the defendant is a corporation or a limited
34 liability company, the fine shall not be less than give
35 hundred thousand dollars ($500,000) but may not exceed
36 five million dollars($5,000,000).
37 (b) If the conviction is for a violation committed after
38 a first conviction of the person or corporation for any
39 crime involving a violation of occupational safety and
40 health provisions, punishment shall be by imprisonment
99
AB 1127 —20-
1
20-1 in the state prison for two, three, or four years, or by a fine
2 no less than fine hundred thousand dollars ($500,000) but
3 not exceeding ,five million dollars ($5,000,000), or by both
4 that fine and imprisonment, but i,f' the defendant is a
5 corporation or a limited liability company, the fine shall
6 not be less than one million dollars ($1,000,0110) but may
7 not exceed ten million dollars ($10,000,0110).
8 (c) This section does not prohibit a prosecution under
9 Section 192 of the Penal Code.
10 SEC. 16. Section 6427 of the Labor Code is amended
11 to react.
12 6427. Any epley corporation or limited liability
13 company, and every employer who creates a hazard,
14 controls the work or the premises, or is responsible for
15 correction of a hazard who violates any occupational
16 safety or health standard, order, or special order, or any
17 provision of this division or of Section 25910 of the Health
18 and Safety Code, and the violation is specifically
19 determined not to be of a serious nature, may be assessed
20 a civil penalty of up to seven thousand dollars ($7,000) for
21 each violation.
22 SEC. 17. Section 6428 of the Labor Code is amended
23 to read:
24 6428. Any employer corporation or limited liability
25 company, and every employer who creates a hazard,
26 controls the work or the premises, or is responsible for
27 correction of a hazard who violates any occupational
28 safety or health standard, order, or special order, or any
29 provision of this division or of Section 25910 of the Health
30 and Safety Code, if that violation is a serious violation,
31 shall be assessed a civil penalty of up to se twenty-five
32 thousand dollars $ 80) ($25,000) for each violation.
33 Employers who do :not have an operative injury
34 prevention program shall receive no adjustment for good
35 faith of the employer or history of previous violations as
36 provided in paragraphs (3) and (4) of subdivision (c) of
37 Section 6319.
38 SEC. 18. Section 6429 of the Labor Code is amended
39 to read.:
99
-21 — AB 1127
1 6429. (a) Any corporation or limited liability
2 company who creates a hazard, controls the work or the
3 premises, or is responsible for correction of a hazard, and
4 every employer who willfully or repeatedly violates any
5 occupational safety or health standard, order, or special
6 order, or any provision of this division or of Section 25910
7 of the Health and Safety Code, may be assessed a civil
8 penalty of not more than seventy thousand dollars
9 ($70,000) for each violation, but in no case less than five
10 thousand dollars ($5,000) for each willful violation.
11 (b) Any corporation or limited liability company, who
12 creates a hazard, controls the work or the premises, or is
13 responsible for correction of the hazard, and every
14 employer who repeatedly violates any occupational
15 safety or health standard, order, or special order or any
16 provision of this division or of Section 2.59.10 of the Health
17 and Safety Code, shall not receive any adjustment of a
18 penalty assessed pursuant to this section on the basis of
19 the regulations promulgated pursuant to subdivision (c)
20 of Section 63.19 pertaining to the good faith of the
21 employer or the history of previous violations of the
22 employe:
23 (c) Any past violation by any corporation or limited
24 liability company, and every employer who creates a
25 hazard, controls the work or the premises, or is
26 responsible for correction of the hazard, occurring
27 anywhere within the state within the previous five years
28 of any occupational safety or health standard, order, or
29 special order, or any provision of this division or of Section
30 2.59.10 of the Health and Safety Code, shall be used to
31 establish whether a current violation is a repeat violation,
32 and shall constitute evidence of willfulness for purposes
33 of this section.
34 (d) The division shall preserve and maintain records
35 of its investigations and inspections and citations for a
36 period of not less than seven years.
37 SEC. 19. Section 6430 of the Labor Code is amended
38 to read:
39 6430. (a) Any corporation or limited liability
40 company who creates a hazard, controls the work or the
99
r-
S
AB 1127 —22-
1
22-
1 premises, or is responsible for the correction of a hazard,
2 and every employer who fails to correct a violation of any
3 occupational safety or health standard, order, or special
4 order, or any provision of this division or of Section 25910
5 of the Health and Safety Code, within the period
6 permitted for its correction shall be assessed a civil
7 penalty of not more than seve twenty-five thousand
8 dollars ($4,009) ($25,000) for each day during which the
9 failure or violation continues.
10 (b) Notwithstanding subdivision (a), for any
11 employer who submits a signed statement affirming
12 compliance with the abatement terms pursuant to
13 Section 6320, and is found upon a reinspection not to have
14 abated the violation, any adjustment to the civil penalty
15 based on abatement shall be rescinded and the additional
16 civil penalty assessed for failure to abate shall not be
17 adjusted for good faith of the employer or history of
18 previous violations as provided in paragraphs (3) and (4)
19 of subdivision (c) of Section 6319.
20 (c) Notwithstanding subdivision (a), any corporation
21 or limited liability company and every employer who
22 creates a hazard, controls the work or the premises, or is
23 responsible for correction of a hazard, who submits a
24 signed statement affirming compliance with the
25 abatement terms pursuant to subdivision (b) of Section
26 6324, and is found not to have abated the violation, is
27 guilty of a public offense punishable by imprisonment in
28 a county jail for a term not exceeding one year, or by a fans
29 not exceeding one hundred thousand dollars ($144,444),
30 or by both that fine and imprisonment; or by
31 imprisonment in the state prison for 16 months, or two or
32 three years, or by a fine not less than fifty thousand dollars
33 ($'54,000) but not exceeding two hundred fifty thousand
34 dollars ($250,000), or by both that fine and imprisonment;
35 and in either case, if the defendant is corporation or a
36 limited liability company the pane shall be not less than
37 one hundred thousand dollars ($144,440) but not exceed
38 one million dollars($1,044,444).
39 SEC. 20. Section 6432 of the Labor Code is amended
40 to read:
99
-23— AB 1.127
1 6432. (a) As used in this part, a "serious violation"
2 shall be deemed to exist in a place of employment if diere
3 any of the following conditions exist:
4 (l) There is a substantial probability that death or
5 serious physical harm could result from a
6 violation, including, but not limited to, any of the
7 following circumstances:
8 (A) An exposure exceeding an established permissible
9 exposure limit,
10 (B) The existence of an unsafe or unhealthful
11 condition.
12 (C) The existence of one or more practices, means,
13 methods, operations, or processes which have been
14 adopted or are in use, in the place of empioyment-ufAess.
15 (2) The violation results in occupational injuries or
16 illnesses that are indicative of a condition that may result
17 in serious physical harm.
18 (b) Notwithstanding subdivision (a), a serious
19 violation shall not be deemed to exist if the employer can
20 demonstrate that it did not, and could not with the
21 exercise of reasonable diligence, know of the presence of
22 the violation.
23 (-b)
24 (c) As used in this section, "substantial probability"
25 refers not to the probability that an accident or exposure
26 will occur as a result of the violation, but rather to the
27 probability that death or serious physical harm will result
28 assuming an accident or exposure occurs as a result of the
29 violation. A substantial probability of serious injury also
30 shall exist if any single serious injury has been caused by
31 the violation.
32 SEC. 21. Section 6434 of the Labor Code is repealed.
33
34 shall not be assessed against employers tha ar-P
35 gevernmentf4 ett6ties.
36 SEC. 22. Section 6435 of the Labor Code is amended
37 to read:
38 6435. Any corporation or limited liability
39 company and every employer who creates a hazard,
40 controls the work or premises, or is responsible for
99
AB 112' —24-
1 correction of a hazard, who violates any of the
2 requirements of Chapter 6 (commencing with Section
3 6503) of this part shall be assessed a civil penalty under the
4 appropriate provisions of Sections 6427 to 6430, inclusive.
5
6 1,
7 ,
8 enacted staw e, wl4eh- "beeemes- effeefive en—er—be€em
9 jafmffy 1, 4 99 1, deletes or extends OW date.
10 SEC. 23. Section 6719 is added to the Labor Code, to
11 read:
12 6719. (a) The legislature finds and declares all of the
13 following:
14 (1) In 1993, the Legislature adopted Section 6357 to
15 require the Occupational Safety and Health Standards
16 Board, on or before January 1, 1995, to adopt standards for
17 ergonomics in the workplace designed to minimize the
18 instances of injury from repetitive motion.
19 (2) The standards board failed to follow this mandate,
20 by failing to adopt ergonomics standards by January 1,
21 1995, and then by adopting a regulation concerning
22 ergonomics that was not designed to minimize the
23 instances of injury from repetitive motion because it
24 contained exemptions and loopholes.
25 (3) The ergonomics regulation adopted by the
26 standards board was held to be invalid in part by a court
27 because it did not fulfill the mandate of Section 6357, and
28 litigation concerning the validity of the regulation is still
29 pending.
30 (4) The purpose of this section is to mandate a
31 minimum standard for ergonomics in the workplace so as
32 to effectuate the original intent and purpose of Section
33 6357, as adopted in 1993, and to avoid continuing
34 litigation.
35 (b) On and after January 1, 2000, the division shall
36 enforce this section through all appropriate means,
37 including, but not limited to, issuing citations and
38 penalties for any violation of this section pursuant to
39 Section 6317. By January 15, 2000, the standards board. also
99
s
-25— AB 1127
1 shall enforce the following requirements pertaining to a
2 job,process, or operation if any of the following exists:
3 (1) A repetitive motion injury (RMI) has occurred to
4 one or more employees engaged in the job, process, or
5 operation. For the purposes of this section, an RMI is an
6 injury or illness that results in any of the following:
7 (A) Fatalities, regardless of the time between the
8 injury and death, or the length of the illness.
9 (B) Lost workday cases, other than fatalities, that
10 result in lost workdays.
1l (C) Nonfatal cases without lost workdays which result
12 in transfer to another job or termination of employment,
13 or require medical treatment, other than first aid, or
14 involve loss of consciousness or restriction of work or
15 motion. The injuries or illnesses specified in this
16 subparagraph also includes any diagnosed occupational
17 illnesses which are reported to the employer but are not
18 classified as fatalities or lost workday cases.
19 (2) A pattern of symptoms or physical signs of
20 work-related RMIs among one or more employees
21 engaged in a job, process, or operation has been identified
22 or reported.
23 (3) One or more employees are exposed to hazards
24 causing or contributing to or likely to cause or contribute
25 to RMI.
26 (4) One or more employees of an employer are in a
27 work activity substantially similar to a job, process, or
28 operation where an RMI or pattern of symptoms of an
29 RMI has been identified or reported at the employer's
30 place of employment. "Substantially similar work
31 activity" means that one or more employees are
32 performing similar tasks, including, but not limited to,
33 worst processing, assembly, or loading.
34 (c) Each employer subject to this section shall
35 establish and implement a program designed to prevent
36 and minimize RMIs. The program shall include a worksite
37 evaluation, control of exposures which are causing or
38 contributing to or likely to cause or contribute to RMIs,
39 and training of employees.
99
AB 112' —26-
1 (1) Each job, process, or operation covered by this
2 section, or a representative number of those jobs,
3 processes, or operations, shall be evaluated for exposures
4 that are causing or contributing to or likely to cause or
5 contribute to RMIs.
6 (2) Any exposures that are causing or contributing to
7 or likely to cause or contribute to RMIs shall be corrected
8 in a timely manner or, if not capable of being corrected,
9 shall be minimized to the extent feasible. The employer
10 shall utilize a hierarchy of controls, beginning with
11 engineering controls, such as work station redesign,
12 adjustable fixtures, or tool redesign, and. administrative
13 controls such as job rotation, work pacing, or work breaks.
14 (3) Employees and supervisors performing or
15 supervising a job, process, or operation to which this
16 section applies shall be provided training that includes an
17 explanation of at least the following:
18 (A) The employer's program.
19 (B) Exposures that have been associated with RMIs.
20 (C) Symptoms and consequences of injuries caused by
21 repetitive motion.
22 (D) The importance of reporting symptoms and
23 injuries to the employer,
24 (E) Methods used by the employer to prevent and
25 minimize RM-11s.
26 (d) Regulations adopted pursuant to this section are
27 expressly exempted from the provisions of Article 5
28 (commencing with Section 11346) of Chapter 3.5 of Fart
29 1 of Division 3 of Title 2 of the Government Code.
30 (e) This section does not prohibit the Occupational
31 Safety and Health Standards Board from acting pursuant
32 to its authority to promulgate regulations in Section 142.3
33 to amend its regulations if the amendments do not reduce
34 the protection with respect to RIMIs afforded workers by
35 the standard set forth in this section.
36 SEC. 24. leo reimbursement is required by this act
37 pursuant to Section 6 of Article .XIII B of the California
38 Constitution because the only costs that may be incurred.
39 by a local agency or school district will be incurred
40 because this act creates a new crime or infraction,
99
-27— AB 1127
1 eliminates a crime or infraction, or changes the penalty
2 for a crime or infraction, within the meaning of Section
3 17556 of the government Code; or changes the definition
4 of a crime within the meaning of Section 6 of Article
XIII B of the California Constitution.
O
99