By Brent I. Clark, Benjamin D. Briggs, Ilana R. Morady, and Craig B. Simonsen
Seyfarth Synopsis: A new Senate Bill that would radically increase Cal/OSHA’s enforcement powers is working its way through the California legislature. SB 606, authored by Senator Lena Gonzalez and Assemblywoman Lorena Gonzalez – both of whom have significant organized labor backgrounds – has been approved by the Senate Judiciary Committee and referred to the Appropriations Committee, its last stop before being considered by the full chamber.
If passed there, it will move to the Assembly. The bill is sponsored by organized labor, including the California Labor Federation, United Food and Commercial Workers Union, and Worksafe.
The bill would do the following:
- Enable Cal/OSHA to issue a citation based on evidence or documents “in lieu of or in addition to an onsite inspection”;
- Expand Cal/OSHA citation authority to include violations of Labor Code Division 5 (relating to safety in employment), including any standard, rule, order, or regulation that is part of it, as well as the Health and Safety Code. This provision potentially flies in the face of the general principle that an agency can’t cite to a statute over an adopted regulation where the statute isn’t sufficiently specific to inform the regulated entity of what it has to do in order to comply with the law;
- Establish a rebuttable presumption that if an employer operates multiple worksites and has a written policy or procedure that violates specific workplace safety laws, the violation is considered “enterprise-wide.” SB 606 would also allow Cal/OSHA to seek an injunction to stop work operations until the alleged enterprise-wide conditions were corrected;
- Staying of abatement by the Appeals Board on enterprise-wide citations would be prohibited unless there are no exposed employees and the condition is not likely to cause death, serious injury or illness, or exposure. The Board would be required to issue an enterprise-wide abatement order if Cal/OSHA demonstrates an enterprise-wide violation;
- Establish “egregious employer” provisions. Cal/OSHA would be required to cite such an employer if it believes the employer has willfully violated a standard. Each employee exposed to that violation would be considered a separate violation for purposes of penalty, which means that the current maximum penalty for a willful, $132,765, could be multiplied across an entire workforce. Under the bill, potential violations would also attached to “related employer entities” defined as employers who have a direct business relationship with the primary employer and share at least in part reliance on their respective policies, advice, or consultation for safety and health compliance, e.g. corporate parents, subsidiaries, affiliates, labor providers, franchisees, and licensees. As many employers are already aware, Federal OSHA has long used corporate-wide abatement as part of a settlement-negotiating strategy, but AB 606 goes much farther by enabling Cal/OSHA to issue enterprise-wide citations;
- SB 606 would establish a rebuttable presumption that an employer has engaged in retaliation against an employee if it takes adverse action within 90 days of an employee raising a potential safety violation, including COVID concerns;
A Chamber-led coalition of employer groups is vigorously opposing this attempted unprecedented expansion of Cal/OSHA authority.
For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.