By Jay W. Connolly, Joseph J. Orzano, and Aaron Belzer

Seyfarth Synopsis:  Join us on Tuesday, September 25th, for this timely California Proposition 65 webinar that will  provide an overview of the updated warning regulations.  The webinar will also discuss the potential impact of the new regulations on enforcement trends.  Lastly, the webinar will provide strategies for businesses seeking to become compliant, as well as those looking to evaluate existing compliance plans based on the latest Proposition 65 developments.

California’s Proposition 65, known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to give “clear and reasonable” warnings to Californians before knowingly and intentionally exposing them to known carcinogens or reproductive toxins.  After a two-year grace period, substantial modifications to the regulations for providing clear and reasonable warnings under Proposition 65 took effect on August 30, 2018.

There is no cost to attend but registration is required.

The webinar will take place at:

1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

Note that CLE Credit for this webinar has been awarded in the following states: CA, IL, NJ and NY. CLE Credit is pending for GA, TX and VA. Please note that in order to receive full credit for attending this webinar, the registrant must be present for the entire session.

By Joshua Henderson

Seyfarth SynopsisAs of August 30, 2018, California businesses must provide the public with more information about dangerous chemicals present at the business location. Many California employers will comply with the new requirements through the Cal/OSHA-required workplace hazardous communication program. For occupational exposures that do not meet the thresholds for HazMat communications, posting new signs will meet the requirements.

California’s ubiquitous Proposition 65 warnings, which warn the public at large of the presence of known cancer-causing chemicals, are receiving a makeover. Beginning August 30, 2018, regulations enacted by the Office of Environmental Health Hazard Assessment will require businesses to provide “clear and reasonable” warnings regarding Prop 65 listed chemicals. For businesses in general, this new requirement typically will mean displaying signs advising the public of known carcinogens on site. (Technically, California does not require the use of these signs, but they provide a safe harbor for businesses because they are deemed compliant with Proposition 65; it is more risky to rely on a homegrown Prop 65 sign.)

The new signs will display the name of at least one chemical that prompted the warning; convey more directly the risk of exposure for consumer products (e.g., saying the product “can expose you to” a listed chemical, rather than that the product “contains” a chemical); and refer to a website that will provide additional, relevant information.

For employers, however, not much will change. Employers already must warn employees of hazardous exposures, as defined by Cal/OSHA standards, occurring at the workplace. Most employers satisfy that duty by implementing a hazardous communication program that complies with Cal/OSHA standards. Employers may continue to do so under the revised Prop 65 regulations. In that sense, a compliant HazCom program (which already requires information about present hazards, employee training, and the availability of safety data sheets) will continue to provide a safe harbor to employers.

Some occupational exposures to listed chemicals do not trigger HazCom threshold requirements but nonetheless are covered by Prop 65. In those cases, Cal/OSHA still permits employers to use their HazCom program to comply. Employers may choose instead to use the new Prop 65 warning signs.

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.

By Joshua M. HendersonIlana R. MoradyBrent I. Clark, and Craig B. Simonsen

Introduction: We are posting our colleagues’ California Peculiarities Employment Law Blog post on workplace violence.  While this particular topic is California centric, the principles discussed below are universal, and appropriate to publish widely.  For instance, workplace violence under federal OSHA is generally citable under the General Duty Clause of the Occupational Safety and Health Act. Many states, including California, also enforce workplace violence under their own versions of the General Duty Clause.  Additionally, local authorities generally will not get involved in a situation where employment workplace violence is feared — such as where one employee makes threatening statements about a co-worker/manager.  But where the employer/employee has obtained a restraining order, the police are more likely to intercede.

By Christopher Im and Minal Khan

Seyfarth Synopsis: Workplace violence is a major concern that can take the form of intimidation, threats, and even homicide. But fret not: California employers can arm themselves with restraining orders, to prevent a modern version of the “Fight Club” at work.

Rule Number 1: If There’s a Workplace Violence Threat, DO Talk About It—In Court

Being at work during a scene reminiscent of “There Will Be Blood” is not an ideal situation. Yet incidents of workplace violence are alarmingly common. According to the Occupational Safety and Health Administration, nearly two million Americans report that they have witnessed incidents of workplace violence, ranging from taunts and physical abuse to homicide. The recent Long Beach law firm shooting by an ex-employee serves as a chilling reminder of what forms such violence can take.

While there is no surefire way to stop unpredictable attacks against employees—whether by a colleague, client, or stranger—California employers can avail themselves of measures to reduce the risk of workplace threats. One such measure is a judicial procedure: a workplace violence restraining order under California Civil Procedure Code section 527.8.

Rule No. 2: Understand What a California Restraining Order Looks Like

A California court can issue a workplace violence restraining order to protect an employee from unlawful violence or even a credible threat of violence at the workplace. A credible threat of violence simply means that someone is acting in such a way or saying something that would make a reasonable person fear for the person’s own safety or that of the person’s family. Actual violence need not have occurred. Many actions short of actual violence—such as harassing phone calls, text messages, voice mails, or emails—could warrant issuing a restraining order.

Restraining orders can extend beyond just the workplace and protect the employees and their families at their homes and schools. A California court can order a person to not harass or threaten the employee, not have contact or go near the employee, and not have a gun. A temporary order usually lasts 15 to 21 days, while a “permanent” order lasts up to three years.

Rule Number 3: Employer Requests Only, Please

The court will issue a workplace violence restraining order only when it is requested by the employer on behalf of an employee who needs protection. The employer must provide reasonable proof that the employee has suffered unlawful violence (e.g. assault, battery, or stalking) or a credible threat of violence, or that unlawful violence or the threat of violence can be reasonably construed to be carried out at the workplace.

So how does an employer request and obtain protection for their employees?

Rule Number 4: Document the “Fight”

The employer must complete the requisite forms and file them with the court. Though the forms do not require it, it often is helpful to include signed declarations from the aggrieved employee and other witnesses.

If a temporary restraining order is requested, a judge will decide whether to issue the order within the next business day, and if doing so will provide a hearing date on a permanent restraining order. A temporary restraining order must be served as soon as possible on the offender. The order becomes effective as soon as it is served. Temporary restraining orders last only until the hearing date.

Rule No. 5: Keep Your Eyes on the Prize at the Hearing

At the hearing, both the employee needing the restraining order and an employer representative should attend. Employers may bring witnesses, too, to help support their case. The person sought to be restrained also has a right to attend, so the employee needing the restraining order should be ready to face that person. If necessary, the employer or the employee can contact the court or local police in advance to request that additional security or protective measures be put in place where there is a threat of harm.

During the hearing itself, the judge may ask both parties to take the stand for questioning. Upon hearing the facts, the judge will either decide to deny the requested order or decide to issue a permanent restraining order, which can last up to three years.

Restraining orders are a serious matter, as employers are essentially asking the court to curtail an individual’s freedom. But such an order is a powerful tool that an employer may find necessary to protect the safety of its employees.

Workplace Solutions: Even though it may relatively easy to demonstrate a credible threat of violence and thus obtain a protective order, know that California courts protect all individuals’ liberty, including their freedom of speech. Obtaining an order to restrain that liberty requires a detailed factual showing.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s OSHA Compliance, Enforcement & Litigation Team.

By Joshua M. HendersonIlana R. Morady, Brent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis:  On March 9, 2018, the California Office of Administrative Law approved the new regulation that will require hotels and other lodging establishments (such as resorts and bed and breakfast inns) to implement new requirements to protect employees who perform housekeeping tasks from any “musculoskeletal injury.” The regulation will take effect on July 1, 2018.

We previously blogged on the new regulation adopted by the Cal/OSHA Standards Board (OSHSB) on January 18, 2018. The new regulation–“Hotel Housekeeping Musculoskeletal Injury Prevention”–is intended to address a workplace hazard confronted by housekeepers, namely, a “musculoskeletal injury,” which is defined as “acute injury or cumulative trauma of a muscle, tendon, ligament, bursa, peripheral nerve, joint, bone, spinal disc or blood vessel.”

The regulation was petitioned for by the labor union UNITE HERE and contains several union-friendly provisions. The regulation will take effect on July 1, 2018.

Substantially, under the new rules California hotel and other lodging establishments industry employers will be required to update their written Injury and Illness Prevention Plan (IIPP) to incorporate the following:

  • Must have a Musculoskeletal Injury Prevention Program (MIPP) in addition to the IIPP. The MIPP may be a standalone policy or incorporated into the IIPP.
  • The MIPP must be “readily accessible” to employees to review during their work shift. An electronic copy is sufficient if there are “no barriers to employee access” as a result. No such requirement exists for IIPPs.
  • By October 1, 2018, effected employers must complete an initial worksite evaluation to identify and address potential injury risks to housekeepers. This worksite evaluation as well as subsequent evaluations (at least annually) “shall include an effective means of involving housekeepers and their union representative in designing and conducting the worksite evaluation.”
  • The MIPP’s procedures for investigating musculoskeletal injuries to a housekeeper must allow for input from the housekeeper’s union representative as to whether any measures, procedures, or tools would have prevented the injury.
  • Records of worksite evaluations and other records required by the MIPP must be made available to a Cal/OSHA inspector within 72 hours of a request. There is no 72-hour deadline under the IIPP regulation.

California hotel and other lodging establishments industry employers now have until October 1, 2018, to roll-out their Musculoskeletal Injury Prevention Programs.  These MIPPs must pass the muster of Cal/OSHA inspectors, including the ability to provide records of worksite evaluations and other records required by the MIPP to Cal/OSHA within 72 hours of a request.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Joshua M. Henderson

Seyfarth Synopsis: Cal/OSHA regulations are enforced by a state agency in administrative litigation. A new Supreme Court decision, Solus Industrial Innovations, Inc. v. Superior Court, allows employees allegedly suffering injuries caused by Cal/OSHA violations to sue for unfair business practices.

The Facts

A water heater explosion at Solus Industrial Innovations, Inc. left two employees dead. After an investigation, the Division of Occupational Safety and Health issued five citations against Solus for alleged violations of Cal/OSHA regulations. Solus appealed the citations to the Cal/OSHA Appeals Board.

Meanwhile, the California Bureau of Investigations (BOI) conducted a separate investigation, as it must when an employee is killed at work. The BOI forwarded its investigation results to the Orange County district attorney (DA), who then filed criminal charges against the plant manager and maintenance supervisor for felony violations of the Labor Code.

The DA also filed a civil action against Solus, claiming that Solus had violated California’s Unfair Competition Law (UCL) and Fair Advertising Law (FAL). These claims alleged that Solus, by maintaining an unsafe work environment, had engaged in unfair and unlawful business practices, while also committing false advertising by making “numerous false and misleading representations concerning its commitment to workplace safety and its compliance with all applicable workplace safety standards,” which allowed it to attract and retain customers and employees.

Solus demurred to the DA’s lawsuit, which was overruled. On an expedited appeal, the Court of Appeal ruled in favor of Solus. The Court of Appeal reasoned that the federal Occupational Safety and Health Act (OSHA) preempted UCL and FAL claims arising from alleged Cal/OSHA violations. The DA sought review by the California Supreme Court.

The Supreme Court’s Decision

A unanimous California Supreme Court reversed. The Court held that federal OSHA did not preempt the DA’s civil action against Solus. Rather, California law preempted federal OSHA—a sort of reverse preemption.

Understanding the Supreme Court’s holding requires a brief summary of federal OSHA’s relationship with Cal/OSHA. Federal OSHA occupies the field of workplace safety and health, but permits states to create their own regulatory plans subject to federal review and approval. California has had such a federally approved state plan since 1973. Under this system, federal OSHA provides a regulatory “floor” under which state plans may not fall. But states may enact broader workplace safety protection than found under federal OSHA.

The Supreme Court rejected Solus’s argument that federal law explicitly or impliedly preempted California law except for provisions of the federally approved state plan. Federal OSHA identifies specific areas (such as workers’ compensation laws) that are not preempted. Yet it does not identify precisely what is preempted. According to the Supreme Court, federal OSHA, by allowing states to provide broader protections, anticipates that states may use enforcement mechanisms other than administrative litigation under the state plans to further their aims. Civil litigation under state law, according to the Court, is not foreclosed by the federal statutory scheme.

The Supreme Court noted that UCL and FAL actions may be brought by both government officials and by persons who have suffered an “injury in fact.”

What Solus Means For Employers

While California law (specifically, the Private Attorneys General Act (PAGA)) previously has allowed claims against employers based on alleged workplace safety violations, PAGA poses several obstacles to ultimate recovery, including exhaustion of administrative remedies and, for some alleged violations, allowing an employer thirty-three days to cure the violations.

Those obstacles do not exist for would-be plaintiffs in UCL and FAL litigation. Accordingly, Solus may result in a spike in workplace safety and health litigation against employers, for several reasons. First, Solus does not require a final order of the Cal/OSHA Appeals Board affirming the underlying administrative citations. Indeed, though the Division had filed citations against Solus, the case was put on hold. During a BOI investigation and any ensuing prosecution, litigation between the Division and an employer concerning administrative citations is held in abeyance. This point raises the possibility that an employer may defeat Division citations and criminal charges, yet still be subject to civil claims.

Second, nothing in the California Supreme Court’s decision suggests that administrative citations are a prerequisite to filing a UCL or FAL claim. Employees may attempt to establish injury in fact in litigation without resorting to filing an administrative complaint with the Division. By contrast, PAGA requires notice to the Division, along with “the facts and theories to support the alleged violation.” Although damages are not available under the UCL, restitution and injunctive relief are. An employee must prove some kind of economic injury in these cases, which may make it more difficult to recover restitution, but may lead to injunctions against employers.

Third, while the Division has six months to issue a citation, the statute of limitations is four years for a UCL claim and three years for a FAL claim. Therefore, the “repose” promised by a six-month administrative limitations period may be shattered by an employee civil action filed long thereafter.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Joshua M. HendersonIlana R. MoradyBrent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis:  The California Division of Occupational Safety and Health (DOSH) recently held advisory meetings on the Agency’s draft rules for the Marijuana/Cannabis Industry and for the Heat Illness Prevention in Indoor Places of Employment.  It is seeking public comments.

Marijuana/Cannabis Industry Rulemaking

The advisory meeting on the DOSH Marijuana/Cannabis Industry Rulemaking was to “consider … whether specific requirements are needed to address exposure to second-hand marijuana smoke by employees at facilities where on-site consumption of marijuana is permitted under B&P Code section 26200(d), and whether specific requirements are needed to address the potential risks of combustion, inhalation, armed robberies, or repetitive strain injuries.” Public commenting is open. The advisory committee must present its finding and recommendations to the Standards Board by October 1, 2018, at which point the Board render a decision regarding whether to adopt the marijuana/cannabis standards.

Heat Illness Prevention in Indoor Places of Employment

The advisory meeting on the DOSH Heat Illness Prevention in Indoor Places of Employment was to “develop a proposed regulation for minimizing heat-related illness among workers in indoor places of employment.”  At the meeting, the public had an opportunity to provide input on a revised discussion draft developed in consideration of the comments received on a previous discussion draft. A side-by-side comparison table is provided along with options for an Amended Section 3395 (Option A) or Creating Standalone Indoor Standard (Option B).

The Cal/OSHA Advisory Committees are currently accepting comments on both of these topics.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Joshua M. HendersonIlana R. MoradyBrent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis:  The California Division of Occupational Safety and Health (DOSH) recently held an advisory meeting on the Agency’s draft rules for Workplace Violence Prevention in General Industry.  It is seeking public comments.

The meeting was to seek input on the new draft proposal to address workplace violence in general industry. If adopted, California would become the first state to issue general industry workplace violence rules. Currently, Cal/OSHA can only regulate workplace violence hazards through its “general duty clause” which provides that employers have a general duty to keep their workplaces safe from recognized hazards.

The December 4, 2017 draft proposed rules defines “workplace violence” as “any act of violence or threat of violence that occurs at the work site.”  Specifically under the proposal workplace violence includes:

  1. The threat or use of physical force against an employee that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury.
  2. An incident involving the threat or use of a firearm or other dangerous weapon, including the use of common objects as weapons, regardless of whether the employee sustains an injury.
  3. Four types of violence:

Type 1 violence means workplace violence committed by a person who has no legitimate business at the work site, and includes violent acts by anyone who enters the workplace with the intent to commit a crime.

Type 2 violence means workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors.

Type 3 violence means workplace violence against an employee by a present or former employee, supervisor, or manager.

Type 4 violence means workplace violence committed in the workplace by someone who does not work there, but has or is known to have had a personal relationship with an employee.

The proposal would require covered employers to develop a Workplace Violence Prevention Plan that includes procedures for:

  1. Obtain the active involvement of employees and their representatives in developing and implementing the Plan, including their participation in identifying, evaluating, and correcting workplace violence hazards, designing and implementing training, and reporting and investigating workplace violence incidents.
  2. Methods the employer will use to coordinate implementation of the Plan with other employers whose employees work in same workplace, where applicable.
  3. Effective procedures for the employer to accept and respond to reports of workplace violence, including Type 3 violence, and to prohibit retaliation against an employee who makes such a report.
  4. Procedures to develop and provide the training.
  5. Procedures to identify and evaluate workplace violence hazards.
  6. Procedures to correct workplace violence hazards in a timely manner.
  7. Procedures for post-injury response and investigation.

The Cal/OSHA Advisory Committee is currently accepting comments on the topic.

Note also that California healthcare employers are currently regulated under the Violence Protection in Health Care standard, and will be required, by April 1, 2018, to comply with those provisions for implementing a Violence Prevention Plan and for training their employees.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Joshua M. Henderson

Seyfarth Synopsis:  This past week, the Cal/OSHA Standards Board approved a new regulation that will require hotels and other lodging establishments (such as resorts and bed and breakfast inns) to implement new requirements to protect employees who perform housekeeping tasks from any “musculoskeletal injury.”

This new regulation–“Hotel Housekeeping Musculoskeletal Injury Prevention”–is intended to address a workplace hazard confronted by housekeepers, namely, a “musculoskeletal injury,” which is defined as “acute injury or cumulative trauma of a muscle, tendon, ligament, bursa, peripheral nerve, joint, bone, spinal disc or blood vessel.” The regulation was petitioned for by the labor union UNITE HERE and contains several union-friendly provisions. Before it can take effect, the regulation must pass the review and approval of the Office of Administrative Law to assure compliance with certain procedural rules. Once approved, the regulation should take effect in the next few months.

Currently, most California employers (including hotels) are required to have a written Injury and Illness Prevention Plan, which must include provisions related to health and safety training, identification and abatement of workplace hazards, and procedures for reporting unsafe working conditions. The new regulation imposes requirements for hotels above and beyond an IIPP:

  • Hotel employers must have a Musculoskeletal Injury Prevention Program (MIPP) in addition to the IIPP. The MIPP may be a standalone policy or incorporated into the IIPP.
  • The MIPP must be “readily accessible” to employees to review during their work shift. An electronic copy is sufficient if there are “no barriers to employee access” as a result. No such requirement exists for IIPPs.
  • Within three months of the effective date of the regulation, hotels must complete an initial worksite evaluation to identify and address potential injury risks to housekeepers. This worksite evaluation as well as subsequent evaluations (at least annually) “shall include an effective means of involving housekeepers and their union representative in designing and conducting the worksite evaluation.”
  • The MIPP’s procedures for investigating musculoskeletal injuries to a housekeeper must allow for input from the housekeeper’s union representative as to whether any measures, procedures, or tools would have prevented the injury.
  • Records of worksite evaluations and other records required by the MIPP must be made available to a Cal/OSHA inspector within 72 hours of a request. There is no 72-hour deadline under the IIPP regulation.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Ilana R. Morady and Andrew H. Perellis

Seyfarth Synopsis: The Cleaning Product Right to Know Act makes California the first state to require ingredient labeling both on product labels and online for consumer cleaning products.

On October 15, 2017, California Governor Jerry Brown signed California Senate Bill (S.B.) 258, the Cleaning Product Right to Know Act of 2017. The new law requires manufacturers of certain cleaning products, i.e. “designated products,” to disclose certain chemical ingredients on the product label by 2021.

Designated products are “a finished product that is an air care product, automotive product, general cleaning product, or a polish or floor maintenance product used primarily for janitorial, domestic, or institutional cleaning purposes.” Exceptions apply, such as referencing that the ingredient information is available on a website, or providing a toll-free phone number.

Under the new law, product information – such as the CAS numbers, the functional purposes of certain ingredients, and a link to the safety data sheets for the products – must also be made available on the manufacturers’ website by 2020. In light of the new law, chemical manufacturers of cleaning products should review their inventory of products sold in California and determine if such products are covered.

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.

By Jinouth Vasquez Santos

Seyfarth SynopsisMarijuana businesses must properly label their products if they contain chemicals that can cause cancer, birth defects, or other reproductive health problems.  Failure to do so will result in a civil penalty or civil lawsuit.

Entrepreneurial Plaintiff’s attorneys have now set their sites on marijuana businesses.  Since January 1, 2017, Plaintiff’s firms have issued approximately 800 violation notice letters to marijuana businesses alleging that producers of cannabis infused edibles and vape cartridge manufacturers failed to warn consumers about specific fungicides and pesticides associated with their products.

California’s Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986, requires cannabis business owners to provide customers with warning of the chemicals contained in their products which can cause cancer, birth defects, and other health problems.  Among the substances “known to the state of California” to cause cancer, birth defects and other health problems are marijuana smoke itself, and the chemicals myclobutanil (also a fungicide), carbaryl, and malathion, commonly-used pesticides.

Failure to comply with the warning requirement can result in a civil penalty up to $2,500 per violation per day in addition to other penalties established by law. The Attorney General may bring an action in the name of the people or the Act allows individuals to bring a private action to obtain the civil penalty against marijuana businesses for failure to warn.

Before filing a lawsuit, the individual seeking a private action must provide a 60-day notice to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.  If, after 60 days, none of the referenced individuals/entities take action, then the individual may proceed with his or her private claim so long as he or she complies with the 60-day notice requirements.

In order for the 60-day notice to be compliant, the notice must include a copy of Prop 65, a description of the violation, the name of the individual seeking an action, the time period of the violation, the listed chemicals involved, the route of exposure (ingestion, dermal contact or inhalation), and a certificate of merit.  The individual bringing the action must certify that they have “consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action.”

Marijuana businesses may avoid such 60-day notices and potential litigation by becoming familiar with the various chemicals that require warning labels, placing warning labels on their products, and ensuring that the pesticide levels in the products are compliant with California regulations. A comprehensive list of the 800 chemicals identified by the State can be found here.

California’s ever changing cannabis regulations can be difficult to maneuver. If you would like to review your policies for compliance, you may contact one of Seyfarth Shaw’s attorneys for assistance.