Cal-OSHA and Labor Code Understanding the Law And Its Consequences Alex Miller, ARM, OHST Director of Safety Services The Leavitt Group

Cal-OSHA: What is it? Cal-OSHA’s Mission Statement “We protect workers and the public from safety hazards by enforcing California's occupational and public safety laws, and we provide information and consultative assistance to employers, workers and the public about workplace and public safety matters”

Cal-OSHA: How is it Organized? Consultation Advice Oriented. Inspection with suggestions. Enforcement “Safety Police” Bureau of Investigation (BOI) High Level Investigation Enforcement Fatalities and Potential Prosecution

Cal-OSHA: Consultation The Cal/OSHA Consultation Service provides assistance to employers and workers about workplace safety and health issues through On-site assistance, High hazard consultation and Special emphasis programs, and Develops educational materials on workplace safety and health topics.

Cal-OSHA: Enforcement The Cal/OSHA Enforcement Unit conducts inspections of California workplaces based on worker complaints, accident reports and high hazard industries. There are 22 Cal/OSHA Enforcement Unit district offices located throughout the state of California. Specialized enforcement units These units augment the efforts of district offices in protecting California workers from workplace hazards in high hazard industries. Some examples are; Mining and Tunneling Unit High Hazard Enforcement Unit

Cal-OSHA: BOI The function of the Bureau of Investigations (BOI) is to conduct criminal investigations and to refer the results of such investigations when appropriate to a City Attorney or District Attorney for necessary action. The BOI shall investigate accidents involving violations in which there is: A serious injury to three (3) or more employees; Death; or A request for prosecution by a Division representative.

Cal-OSHA Violations

Violations: Types Regulatory Violation General Violation Typically Paperwork related. Least severe. General Violation No probability of severe injury Serious Violation Likely to result in injury or death. Two types of modifiers: Repeat Willful

Violations: Regulatory Regulatory Violation is a violation, that pertains to permit, posting, recordkeeping, and reporting requirements. For example, failure to obtain permit; failure to post citation, poster; failure to keep required records; failure to report industrial accidents, etc.

Violations: General General Violation is a violation which is specifically determined not to be of a serious nature, and probably would not result in death or serious injury.

Violations: Serious Violation A “serious violation” shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a violation, including, but not limited to, circumstances where there is a substantial probability that either of the following could result in death or great bodily injury:

Violations: Repeat Violation is a violation where the employer has corrected, or indicated correction of an earlier violation, for which a citation was issued, and upon a later inspection is found to have committed the same violation again within a period of three years immediately preceding the latter violation.

Violations: Willful Violation is a violation where evidence shows that the employer committed an intentional and knowing act, and the employer is conscious of the fact that what he is doing constitutes a violation of a safety law; or, even though the employer was not consciously violating a safety law, he was aware that an unsafe or hazardous condition existed and made no reasonable effort to eliminate the condition.

Consequences for Violations Regulatory Violations In General Up to $7,000 for each violation For violation of Permit Minimum of $1,250 to $7,000 Failure to report serious injury or death Minimum of $5,000

Consequences for Violations General Violations Up to $7,000 per violation

Consequences for Violations Serious Violation Initial base penalty of $18,000 Adjusted for both Extent and Likelihood Low – 25% of Base is subtracted Medium – No adjustment High – 25% of base is added Up to $25,000 for each and every violation Adjustments are then made for size of company, citation history, etc.

Consequences for Violations Failure to abate If a company does not fix the violation situation within 10 days, Cal-OSHA will add a penalty to the fine. $15,000 Daily penalty for each day issue not abated

Consequences for Violations Repeat Violation-- If a Regulatory, General, or Serious violation is repeated the Proposed Penalty is adjusted upward as follows: 1st repeat-- Proposed Penalty is multiplied by 2. 2nd repeat--Proposed Penalty is multiplied by 4. 3rd repeat-- Proposed Penalty is multiplied by 10. The resultant penalty shall not exceed $70,000.

Consequences for Violations Willful Violation- If a Regulatory, General, or Serious violation is determined to be willful the Proposed Penalty is adjusted upward as follows: Regulatory, General and Serious--the Proposed Penalty is multiplied by five. However, the penalty for any willful violation shall not be less than $5,000 and shall not exceed $70,000.

Consequences for Violations A Repeat and/or Willful Violation Causing Death or Serious Injury, Illness or Exposure— The computation of the Proposed Penalty for a willful violation shall not be subject to reduction, where the violation is determined by the Division to have caused death or serious injury, illness or exposure within the meaning of Labor Code section 6302.

Consequences for Violations Cal-OSHA’s Egregious Violation Policy For example: A company receives citation for exposed rebar impalement hazard for 50 concrete pins that are uncapped. There are 10 workers on the site. Result: Instead of 1 citation for an impalement hazard, the company would receive 1 citation for each unprotected concrete pin; 50 citations.

Labor Code

Consequences for Violations Labor Code - Section 6423 “… every employer and every officer, management official, or supervisor having direction, management, control, or custody of any employment, place of employment, or of any other employee, who does any of the following is guilty of a misdemeanor: “ Knowingly or negligently violates any standard, … which is deemed to be a serious violation Repeatedly violates any standard, … which repeated violation creates a real and apparent hazard to employees. Fails or refuses to comply, after notification and expiration of any abatement period, with any such standard, … which failure or refusal creates a real and apparent hazard to employees Knowingly fails to report to the division a death Directly or indirectly, knowingly induces another to commit any of the acts above.

Consequences for Violations Labor Code - Section 6423 Individual Penalties for Violation Imprisonment for up to 6 months or fine up to $5,000 per violation, or both, or Imprisonment for up to 1 year, or up to $15,000 fine per violation, or both Corporate Penalties for Violation All criteria are the same, except the fines go up to $150,000 per violation.

Consequences for Violations Labor Code - Section 6425 If violation of 6425 resulted in a fatality, or caused permanent or prolonged impairment, the person is guilty of a public offense punishable by imprisonment in a county jail for a term not exceeding one year, or by a fine not exceeding one hundred thousand dollars ($100,000), or by both that imprisonment and fine; or by imprisonment in the state prison for 16 months, or two or three years, or by a fine of not more than two hundred fifty thousand dollars ($250,000), and in either case, if the defendant is a corporation or a limited liability company, the fine may not exceed $1,500,000.

Consequences for Violations Labor Code - Section 6425 If the violation is a repeated one within 7 years of the first The fine for the individual goes from $100,000 to $250,000 The fine for the corporation goes from $1,500,000 to an amount not to exceed $3,500,000 This section does not prohibit prosecution under Section 192 of the Penal Code Manslaughter

Consequences for Violations Labor Code – Section 6426 Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this division shall, upon conviction, be punished by a fine of not more than seventy thousand dollars ($70,000), or by imprisonment for not more than six months, or by both.

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